Donald Trump

[FogBlueInSanFran]

Well that’s a fair retort. But the thing with Trump is, he does so much fucked up stuff it is weirdly easy to forget something like that which would be (rightly) a career-ender for any other politician. I guess I’m referring more to his “general demeanour” than any one particular thing. He’s become almost consistently infantile and crude recently and I do think something is going on there. Either he’s pushing that stuff more to get headlines because he thinks he’s losing, or this is a part of his cognitive decline, or he has just stopped caring.



I don’t want to speak for @FogBlueInSanFran but his thinking on this is similar to mine. Which is that Trump is a danger to democracy because there is no way you can make a constitution robust enough if more than half the government and the president are bad faith actors. In the event GOP win all branches of government, making changes to the constitution to try and prevent a Trump dictatorship is like shuffling the deck chairs on the Titanic. There is really nothing you can do about that. The whole point is they are not playing by the same set of rules we are, they will just make the rules to suit them.

For the record, I don’t think that’s a good argument for not changing the Constitution. I think it’s a bit fatalistic. Like not getting a vaccine because of the 5% chance you’ll get the disease anyway. The Constitution needs updating and amending because within its current civil framework there seems to be good cause for it (e.g. the Electoral College is outlined in the Constitution and I think is broken). But this, for me, is separate to amending the Constitution to protect against Trump which is a bit of a fool’s errand.

You speak for me fine mate.

 

[halfcenturyup]

It’s not an either/or.

Every Democratic system of government relies on trust — trust that those elected will not attempt to abuse their power. The entire banking and currency system relies on trust — trust that paper money is backed by the full faith and credit of the government that issues it.

No system of government let alone democracy is immune from a bad faith actor who chooses to abuse trust and power. It’s not exclusive to America, or anywhere. It’s just that we haven’t had a President who did as such since Nixon.

I am wide open for suggestions as to what system/reforms are better — reforms all would agree on, that is, not impractical ones.

Fair enough. You think the constitution/institutions are as good as they can be in preventing a bad faith actor from doing bad things. I get it.

If I was being pedantic, I would say that that is an admission that they aren't robust enough, but I don't want to be. So I will leave it.

Off to the royal family thread to discuss how the UK constitution would deal with a "politician" like Trump :)

 

[FogBlueInSanFran]

Fair enough. You think the constitution/institutions are as good as they can be in preventing a bad faith actor from doing bad things. I get it.

If I was being pedantic, I would say that that is an admission that they aren't robust enough, but I don't want to be. So I will leave it.

Off to the royal family thread to discuss how the UK constitution would deal with a "politician" like Trump :)

Well, I’d say nearly 250 years of history and no civil war since the 1860s suggests they’re doing at least an okay job.

 

[denislawsbackheel]

250 years of history.
Bless.
We’ve a pub in Macclesfield 250 years older than that.
Built in 1525.

 

[threespires]

Again, I am not referring to the Second Amendment. We know the Constitution will age and its prescriptions will become antiquated. Moreover the framers knew it too. That’s why we can amend it. That’s why they’re called Amendments. And they themselves can be amended.

The criticism of the others here is to the systemic structural failure of the institutions and I continue to await an explanation for what this means and how to fix it.

I don't think ultimately you can apply any guaranteed fixes, any constitution written or unwritten is open to abuse by those who want to subvert democratic norms. The question is how do you make that harder for the bad actors and how quickly can you respond to them and I think this is where Trump and modern life/politics makes things problematic.

Most framers not just the US work on the assumption that separation of powers will work based on divergence of interests across the branches and design mechanisms to try and maintain those divergences of interest (not only across the branches but in the case of the legislative within them with local interests overriding party interests etc) and broadly speaking it tends to work. But I think trump has managed to sidestep those divergences not necessarily because he's a political genius but because he's been the beneficiary of some trends. Since the days of Gingrich, the legislative has been on a path that is more polarised and partisan than ever. So the idea that a meaningful proportion of the GOP will support the curtailing of presidential/exec overreach by trump has gone down the crapper. Worst still is the asymmetry between the current GOP's attitude to democratic norms and the democrats who still seem to want to play by the normal rules.
You point out that SCOTUS has been both loaded and useless in the past and this is true but this iteration is both compromised at an individual level in some cases with their relationships to superdonors and has taken to sweeping away settled law in a way previous courts haven't. Some of their arguments/opinions look overtly political rather than legal and they display little to no desire to asert their independence which is scary because what happens when they do want to do that? Will anyone care if they have destroyed their own credibility. Which brings me to my main point...
Ultimately the backstop for any constitution is that the electorate expect some kind of norms and values to be applied and will make their feelings known if they are not. But we now live in a technological age where it's possible to create a mass cult and/or mislead large swathes of the electorate. Add in that trust in the political process and politicians is at an all time low and in effect 'the people' are maybe not in the condition to play that role as eventual safety valve that most constitutions assume. So is any of this the constitution's 'fault', no but it does suggest that Trump has placed it under real strain in a way that hasn't gone away and come Nov may bite everyone in the arse. What amendments are required ? If I knew that I'd be a constituenal lawyer rather than a tubby man on an internet forum. But I do think it needs proper consideration, unless of course he gets in with control of the house and senate at which point he'll probably repeal A22 and introduce a new one mandating dynastic rule so it won't matter!

 

[KS55]

Congress has to approve every nominee.

Feel free to suggest a better way SC justices should be selected, and how that way will be approved by all and sundry.

As you know, Trumps nominees lied to congress in their conformation hearings.
You could do worse than look at the UK Judicial Appointments Commission.
We had a problem that judges did not reflect the society they served. This was because, in typically British fashion, the names ‘emerged’ from the Inns of Court and soundings in Westminster. The result was Judges who merely reflected the establishment with very few women and people from ethnic minorities.
The JAC was established to put this right. All appointments are advertised and candidates must apply. There is a rigorous selection process in which politicians play no part. The successful candidates are, I think, formally approved by the minister of justice. The result is a much changed bench with more women and ethnic minorities and judges from previously ignored spheres.
There is no reason why US could not have a similar system, starting with the states and moving up to federal level. The issue would be the insistence by some that judges be elected and SC judges have to be appointed by the president and approved by the senate, but it is the selection of candidates that would be changed, not the approval system.
Trump has manipulated the system at all levels to create a judiciary in his own image.
Finally, the insistence by the chief justice that Congress has no role in the oversight of judges and that they cannot lay down ethical standards is also unconstitutional
( See J Michael Luttig) and needs to be fixed by statute.
Currently, some SC Judges are bought by rich men with political contributions. This can be fixed by increasing their pay to, say, 10m usd p.a. and banning all other sources of income.
Your insistence that there is no part of the constitution that is failing flies in the face not only of the evidence but of even ultra conservative figures who have called for change. That change does not necessarily need to involve amending the constitution which is impossible but can be achieved through statute designed to keep the bad actors out or at least curtail their ability to act poorly.

 

[threespires]

Congress has to approve every nominee.

Feel free to suggest a better way SC justices should be selected, and how that way will be approved by all and sundry.

What's the rules for impeaching SC judges and getting them booted off? I know they exist but don't know the detail. If that could be made to be apolitical then that would help the current situation surely?

 

[FogBlueInSanFran]

As you know, Trumps nominees lied to congress in their conformation hearings.
You could do worse than look at the UK Judicial Appointments Commission.
We had a problem that judges did not reflect the society they served. This was because, in typically British fashion, the names ‘emerged’ from the Inns of Court and soundings in Westminster. The result was Judges who merely reflected the establishment with very few women and people from ethnic minorities.
The JAC was established to put this right. All appointments are advertised and candidates must apply. There is a rigorous selection process in which politicians play no part. The successful candidates are, I think, formally approved by the minister of justice. The result is a much changed bench with more women and ethnic minorities and judges from previously ignored spheres.
There is no reason why US could not have a similar system, starting with the states and moving up to federal level. The issue would be the insistence by some that judges be elected and SC judges have to be appointed by the president and approved by the senate, but it is the selection of candidates that would be changed, not the approval system.
Trump has manipulated the system at all levels to create a judiciary in his own image.
Finally, the insistence by the chief justice that Congress has no role in the oversight of judges and that they cannot lay down ethical standards is also unconstitutional
( See J Michael Luttig) and needs to be fixed by statute.
Currently, some SC Judges are bought by rich men with political contributions. This can be fixed by increasing their pay to, say, 10m usd p.a. and banning all other sources of income.
Your insistence that there is no part of the constitution that is failing flies in the face not only of the evidence but of even ultra conservative figures who have called for change. That change does not necessarily need to involve amending the constitution which is impossible but can be achieved through statute designed to keep the bad actors out or at least curtail their ability to act poorly.

We've been down this path before -- "politicians play no part" -- who ultimately is on the selection committee and why couldn't a bad actor (or actors) there subvert the process?

I am not insisting that no part of the Constitution is failing -- it can and has failed in the past; that's what Amendments are for. Moreover it was DESIGNED to be changed. Amendments aren't impossible -- but they are difficult, and are designed to be.

I don't dislike the "pay judges/politicians more" argument and have advocated for it before, though it opens up other potential bad motivations. I feel the same way, for example, about the Electoral College, about which I have mixed feelings.

Trump has "subverted" the process because he's a bad actor, as are possibly some of those he appointed.

 

[Trevor Morley's Tache]

Well, I’d say nearly 250 years of history and no civil war since the 1860s suggests they’re doing at least an okay job.

Has the Constitution ever been tested like this before though?

McCarthyism came close, and had it not been for a strong SCJ (Warren), it could have been a very different outcome. With Trump, he has a favorable SC so who knows. Any of his lackeys in the House or Senate could throw a spanner in the works and disrupt the electoral process.

 

[FogBlueInSanFran]

Has the Constitution ever been tested like this before though?

McCarthyism came close, and had it not been for a strong SCJ (Warren), it could have been a very different outcome. With Trump, he has a favorable SC so who knows. Any of his lackeys in the House or Senate could throw a spanner in the works and disrupt the electoral process.

All accurate -- but also speaks to my point. No system can fully protect itself from bad actors. At the end of the day we rely on the voters to do that, and for those in power themselves to self-police. That some in the GOP have hit on the "election fraud" thematic so directly pretty much tells you how strong the overall Federal institutions are -- that's where they see the weak point, because the process is largely controlled by the individual states.