Neither of the Top Candidates for the White House This Year Is Living Up to Constitutional Norms 

The transfer of power to Jefferson from Adams in 1801 was grudging but peaceful — a defining moment not just in American history but in world history.

Via Wikimedia Commons
Jean Leon Gerome Ferris: 'Washington's Inaugration at Philadelphia,' detail. Via Wikimedia Commons

How are America’s leaders measuring up against the standards set by the Constitution and the examples of the Founding Fathers? It’s a question I’ve been asking as I seek refuge from contemporary politics in reading and occasionally writing, in my 2023 book “Mental Maps of the Founders,” about the early years of the republic.

One answer is that neither President Trump nor President Biden measures up well — but not necessarily in the ways their critics think.

For example, many people, including me, are dismayed by Mr. Trump’s trash-talking his opponents: his disparagement of recent Republican presidents and nominees, his insulting nicknames for opponents of both parties, his unfair but successful diminishment of Governor DeSantis.

Others, including me, are put off by Mr. Biden’s dismissal of “MAGA Republicans” and Secretary Clinton’s dismissal of “deplorables” as beyond the pale of decent citizens.

Such trash-talking is against the political norms of the middle and late 20th century. President Kennedy didn’t disparage fellow Democrats or President Eisenhower. Presidents who defeated incumbents — Carter, Reagan, Clinton — didn’t whine about the messes their predecessors left behind.

The Founders were not so prim. George Washington complained about Jeffersonian “self-created societies.”  Jefferson called Hamilton a “monarchist,” and Hamilton wrote of the “great and intrinsic” defects in the character of John Adams. Much of the name-calling came in pamphlets either anonymously or under pseudonyms that everyone saw through.

However, when it came to obeying the Constitution’s rules, the Founders did. The transfer of power to Jefferson from Adams in 1801 was grudging but peaceful — a defining moment not just in American history but in world history.

This was in obvious contrast to the riot at the Capitol on January 6, 2021. This wasn’t an “insurrection” like the secession proclamations of 1860-61, and it could have been prevented if Capitol authorities had sufficient forces on hand.

As I wrote at the time, “While President Trump’s exact words to the crowd on the Ellipse didn’t constitute a criminal incitement, they were uttered with a reckless disregard for the possibility that they would provoke violence, which any reasonable person could find impeachable.”

In fact, many reasonable members of Congress, all Democrats and some Republicans, found Mr. Trump’s conduct contrary to the president’s constitutional duty to faithfully execute the laws, and they voted to impeach. A majority, 57 of 100, of senators voted for conviction, short of the two-thirds required by the framers of the Constitution for the dire penalties of removal and disqualification from office.

Similarly, Jeffersonians’ impeachment of a Supreme Court justice fell short of two-thirds for removal in the Senate. Absent the constitutionally required consensus, a drastic remedy is not in order.

Facebook and pre-Elon Musk Twitter, cheered on by Democrats and law professors, almost immediately suspended Mr. Trump. That wasn’t unconstitutional, but it’s in tension with the animating spirit of the First Amendment. 

Even more so was the propagation by federal officials and Democratic officeholders, starting years before January 6, of the Russia collusion hoax.

In the first decades of the young republic, the Founders traded accusations of foreign allegiances. That’s because they faced a world war for all but a few months between 1793 and 1815 between revolutionary France and mercantile Britain, with many Americans favoring each side. Once that conflict was settled, charges of foreign allegiance disappeared.

Similarly, in the early years of the Cold War, accusations of allegiance to Stalinist Russia, some justified and many not, were common in American politics. The partisan and press propagators of the Russia collusion hoax had no such excuse: Russia is an unfriendly power, but the Cold War is over, and the evidence behind the charge was flimsy to the point of being laughable.

Just as flimsy have been the “lawfare” legal actions brought against Mr. Trump by Democratic local and special federal prosecutors. Most egregious is the lawsuit under a novel interpretation of a New York law in which Trump was fined $454 million, reduced to a picayune $175 million by an appeals court, for an inaccurate loan application that directly defrauded no one.

The obvious unfairness of the charges strengthened Mr. Trump’s candidacy. Days after the Manhattan district attorney brought the first case against Mr. Trump, his poll lead over Mr. DeSantis doubled from a close 15 points to an insuperable 32 points.

Voters seem to understand that using government to bankrupt a political opponent is contrary, certainly to the spirit, and arguably to the letter, of the Constitution. “Excessive bail shall not be required, nor excessive fines imposed,” reads the Eighth Amendment. That in turn was inspired by England’s 1689 Declaration of Right, which banned “excessive bail,” “excessive fines” and “unusual punishments.”

That was inspired by the ousted King James II’s lawfare against his political opponents, as I recounted in my 2007 book “Our First Revolution.” Coincidentally, it was James who, as Duke of York, ordered the capture of Nieuw Amsterdam, which has been named after him ever after.

This violation of constitutional norms evidently has Mr. Biden chortling and calling Mr. Trump “Broke Don,” much as he chortled over the Supreme Court’s rejection of his potentially $50 billion student loan forgiveness order as spending money without a constitutionally required appropriation by Congress.

America’s two presidents vying for a second term grew up in an America far closer in time to the Founding Fathers than any possible successor, but both have shown a reckless disregard for constitutional norms.

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