Cross-posted from the Indiana Law Journal. This piece is part of the ACSblog symposium: “The Future of the U.S. Constitution." You can learn more about this symposium here.
The election of Donald Trump as president represented a failure of American politics. No healthy political culture could have produced his presidency. What is less clear, and what I wish to address here, is whether Trump’s election also represented a failure of the U.S. Constitution. Do our constitutional arrangements predict just the kind of political failure that materialized in November 2016? If so, does that mean that the long-term remedy for that failure lies in constitutional reform? Does our constitutional fate, in other words, determine our political fate?
Trump’s election has many causes, some of which are clearly contingent. It is easy to imagine Hillary Clinton winning an election held one week later, say, or two weeks earlier. And so the question that interests me arises from the possibility of Trump’s being elected rather than the fact of his election itself. The question does not, moreover, depend on Trump’s particular cocktail of policy interests (such as they are). Trump’s presidency is a crisis not because of his policy positions but because of his corruption, his infantile temperament, his dangerous self-obsession, his sexism and sympathy to white nationalism, his indifference to the truth and his fundamental indecency. A leftist version of Trump is imaginable and, in my view, equally frightening.
The set of conditions that create the possibility of a Trump or Trump-like presidency are many and are contestable. The umbrella term I will place over at least a subset of those conditions is one I borrow from economics: disintermediation. Disintermediation is what it sounds like: cutting out the middle person, typically from a supply chain. Intermediaries such as distributors or brokers connect sellers to buyers. This is easy to see in a commercial market, and it is equally easy to see how technological change can reduce the need for intermediaries. Amazon is a low-cost means of connecting buyers to sellers. Trulia connects home buyers to sellers without the need for real estate brokers. But disintermediation also occurs in political and information markets, as the Internet and social media platforms diminish the need for traditional information brokers such as major media outlets.
Disintermediation in information markets has made it easier for Trump to peddle unrealistic promises and outright lies without being checked in a way that his base finds credible. It has enabled him to run a winning national campaign without significant support within the mainstream media or among the professional elite and without significant national television advertising. The large numbers of Republican politicians who opposed Trump’s candidacy and find him personally abhorrent refuse to provide any check on his behavior insofar as he is useful to their policy agenda and, they fear, to their electoral prospects. Because of a high level of political polarization that is itself enabled by disintermediation, support from Democrats is irrelevant to the Republican platform.
The problem I have described is of constitutional dimension. Our constitutional structure is intended to support a healthy American “middle.” In a series of projects culminating in a book manuscript, Joey Fishkin and Willy Forbath have argued that the Constitution includes a commitment to a broad and sustainable middle class. Likewise, our constitutional arrangements presuppose a political middle that constitutes the government in the ordinary course. The original Madisonian system of checks and balances—bicameralism and presentment; supermajority veto and treaty requirements; an appointments process that requires advice and consent for principal officers; institutions of federalism; and so forth—is implicitly founded on the notion that policy will be the result of political negotiation and compromise, not the result of radical and uncompromising swings from one end of the political spectrum to the other. The constitutional commitment to freedom of speech has been read as protecting a marketplace of ideas whose currency is truth. But the metaphor assumes that deregulation will lead individual participants within the marketplace to have greater, not less access to challenging ideas, and that they will have the will and capacity to reflect upon those ideas. The clearing of information markets requires a certain kind of community—a deliberative community—that disintermediation tends to dismantle.
Disintermediation has contributed to a hollowing out of the political middle, but that does not mean that restoring the middle requires traditional intermediaries. Walter Cronkite is not coming back, and in any event disintermediation has certain democratizing effects that we should welcome. Still, the functions intermediaries play, which are to discourage extremism and misinformation and to allow for political dialogue, are ones the constitutional structure deliberately supports and that the nation literally cannot live without.
We need to think creatively about how to bolster institutions that can help reconstitute the political middle. That might mean restoring or retaining supermajoritarian requirements such as the filibuster. It might mean eroding all-or-nothing electoral mechanisms such as first-past-the-post voting systems and winner-take-all Electoral College arrangements. It might mean redistricting and voting reforms that weaken the two-party system and therefore force coalition building and diminish the powerful branding effects of partisan identification. It might mean vigorous public financing of political campaigns so that celebrity, corruption or massive personal wealth (or all three) do not become functionally necessary to win office. It might mean more innovative financing of media so as to reinvest in a virtual public square. It might mean thinking differently about individual rights, jettisoning typically American rights absolutism in favor of more balancing, case-by-case adjudication, and remedial flexibility. It might mean creating formal institutions of public integrity that are on par with the SEC and the Fed in their political importance.
None of these suggestions necessarily would require a formal constitutional amendment but all of them unsettle deep assumptions about our political arrangements. It is past time to entertain that kind of discomfort. Unless we find ways to restore the middle, I fear that we will be as on the Titanic, with President Trump the tip of a massive iceberg.