Trump v. The Constitution


With the Trump presidency, the United States of America faces a truly unprecedented situation—largely due to the ways in which the current president tests the limits of our democracy’s founding document. Trump’s fraught relationship with the Constitution was the topic for a lecture and discussion at Fordham Law School on February 14, featuring Corey Brettschneider, visiting professor at Fordham Law, and Zephyr Teachout, associate professor at Fordham Law. The event, titled “Trump v. The Constitution,” took place in front of a packed McNally Amphitheatre.

Brettschneider, who is also a professor of political science and public policy at Brown University, began the evening with a lecture on presidential power. Drawing heavily from his new book, The Oath and the Office: A Guide to the Constitution for Future Presidents, Brettschneider addressed the ways in which Trump has threatened many of the rights enshrined in our Constitution—a document that all presidents swear to defend. Brettschneider finds Trump’s warnings that he will “open up the libel laws in this country” to be particularly troubling, given the freedoms of speech and press that our Constitution guarantees.

“In a democracy,” Brettschneider noted, “if you shut down viewpoints—political opinions—we lose the ability to hear the arguments necessary to make decisions as citizens.”

For Brettschneider, and many political philosophers before him, democracy largely rests on a single notion: “As citizens, we have to be able to hear all the arguments.”

Brettschneider’s lecture also addressed Trump’s failure to speak out against neo-Nazi protesters at Charlottesville, casting it as not merely an ethical blunder, but a dereliction of constitutional duty. Indeed, Brettschneider explains in his book that the bully pulpit—the platform that the president has to influence the country through his public speech—is very much wrapped up with those presidential responsibilities made explicit in the Constitution.

The president’s treatment of the Charlottesville incident, Brettschneider stressed, was “not just a moral failure.” It was also “a constitutional failure of that duty to use the bully pulpit in the right way.”

So what can be done to defend the Constitution in an increasingly unsteady political climate?

Brettschneider argued that we should not solely rely on the courts, as some have suggested. “We cannot trust the Supreme Court to ensure that a president is going to be policed,” he said. The Court is not the Constitution police and they will not always ensure that that president’s oath to preserve, protect, and defend the Constitution is guaranteed.”

“It is up to the American people,” Brettschneider concluded, “to demand enforcement of the oath of office.” The most effective way to do this is to vote, and indeed Brettschneider stressed that the 2020 election will largely be a referendum on the Constitution of the United States.

Brettschneider’s lecture was followed by a discussion with Teachout. Teachout, who previously ran for attorney general in the state of New York, and who authored a book titled Corruption in America, pressed Brettschneider with questions about the role of district attorneys in challenging executive power—a trend that has in fact already gained some traction, particularly in blue states.

“I think that prosecutors should be more eager to look at those in positions of power—whatever those positions of power may be,” said Teachout. “The obligation of the office is not to defer.”

Brettschneider acknowledged these points, adding to the discussion his personal belief that executive power must be significantly curtailed at some point in the near future.

“This office is so powerful that the danger is in the idea that the president will continue to act lawlessly without any check,” he said. The theoretical possibilities are frightening, given how Trump has flaunted norms so casually. “What if a president of the United States, who controls the armed forces, decides that they don’t want to hold an election, or don’t want to comply with the results of an election? That’s a real danger.”


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