The Constitution and Mr. Trump

Yuval Levin on the attempts to defeat Trump with litigation

Yuval Levin writes,

The attempt to remove Donald Trump from the ballot by recourse to the 14th Amendment is the latest such assault because it amounts to an abuse of the Constitution in search of a shortcut to defeating him.

…moving to strike Trump from the ballot, regardless of what you think of him, would be yet another blow to our constitutional order, which has suffered so much abuse of late. In the same sorts of terms in which Trump has most harmed the Constitution, this misbegotten strategy does too.

Reading the essay as a whole, I would say that Levin attempts to differentiate between the spirit of the Constitution and the letter of the Constitution. In a way, the spirit is clearer than the letter. And the spirit is more important than the letter.

The spirit of the Constitution is that we should resolve our differences through negotiation and compromise, rather than by using clever tactics to remove opposition. The system of checks and balances is intended to prevent a small majority from trampling over the rights and preferences of everyone else.

Of course, we want the Supreme Court to stick to the letter of the Constitution. Levin is clear on this. We do not want the Court to be tasked with divining the spirit of the Constitution. When it has done so, as I believe it did in Roe v Wade, it has only served to inject itself divisively into the political process.

What Levin wants is for politically engaged citizens to adhere to the spirit of the Constitution. In the case of Mr. Trump, that means attempting to defeat him at the ballot box, not with lawfare.

Levin would like to have us return to the spirit of a Constitution in which we agree that our differences should be settled by bargaining. Instead, all I can see is escalating whataboutism. “How can you expect me to compromise with you after you did X?” X could be the impeachment of Bill Clinton, the tactics used to pass Obamacare, various Presidents’ abuses of executive orders, and so on.

One can hope that the majority of Americans would prefer to see Levin’s spirit of the Constitution restored. That is why they are so despondent over the prospect of a Biden-Trump rematch.

Perhaps Mr. Biden would be the overwhelming favorite in 2024 if he had only understood this desire to make politics less harsh. His stubborn approach on issues like student loans and immigration (non-) enforcement showed him to be unwilling to listen to opposition, compromise with the other party, or choose moderation over extremism. Voters may have wanted a humble centrist, but he declined to play the part.

I am not optimistic that our political system as currently configured can end the cycle of partisan over-reaching. With social media tribalism and the primary system, Levin’s idea of the spirit of the Constitution stands little chance.