Aloha,

Declining respect for, or even active awareness of its existence and purpose, 
is not an uniquely American phenomenon, it is also widespread in Europe, as can 
be seen in the behaviour of the ilk of Boris Johnson, Hungarian and Polish 
prime ministers & presidents, but also in a more discreet and insidious - yet 
no less dangerous - ways among even liberal political leaders and lawmakers. 
The future does not look bright for the rule of constitutional law, and hence, 
very directly, for our collective and individuals freedoms. Unless ....

Ciaoui, p+2D!
(fans of 'Italiani, di Costituzione';-)


Abstract of the Chapter: "The Trump Presidency, Racial Realignment, and the 
Future of Constitutional Norms" (*)


This chapter in a forthcoming volume, Amending America’s Unwritten Constitution 
(Cambridge University Press) (Richard Albert, Yaniv Roznai, & Ryan C. Williams 
eds., forthcoming 2021), asks into the likely implications of the Trump 
Presidency for the future sustainability of constitutional norms in the United 
States. It observes that what counts as a persuasive answer to that question 
turns primarily on why politicians’ respect for constitutional norms has been 
declining, and it argues that President Donald Trump is more of an effect (and 
a symptom) than a cause of the decline. Specifically, he is more of an effect 
than a cause of larger racial and cultural changes in American society that are 
causing Republican voters and politicians to perceive an existential threat to 
their continued political and cultural power—and, relatedly, to deny the 
legitimacy of their political opponents. As illustrated by the conduct of 
Republicans in Congress and statehouses, it is very unlikely that Republican 
politicians will respect constitutional norms when they deem so much to be at 
stake in each election and significant governmental decision. Moreover, 
Democratic politicians, now that they fully control the political branches, may 
begin a campaign of retaliation that will include violations of norms.

As a result, one should expect continued violations of constitutional norms by 
American politicians to accomplish partisan goals—what Mark Tushnet has called 
“constitutional hardball”—at least until the electoral impact of demographic 
changes in the electorate exceeds the electoral impact of the rural favoritism 
that is built into the nation’s constitutional electoral processes. The 
Republican Party has likely been able to hold on to so much power without 
moderating for as long as it has primarily because of that rural favoritism. At 
the same time, the results of the 2020 elections indicate that the country is 
not nearly as liberal as the most liberal members of the Democratic Party may 
believe, so the party may remain under pressure to stay relatively moderate. 
Demography is not destiny, as the increase in Latino support for Trump in 2020 
suggests, and the education-level divide may continue to play a significant 
role in party configurations in the years ahead.

At some point, however, the Republican Party may face a choice between losing 
most national elections and significantly broadening its appeal beyond racial, 
religious, cultural, and economic conservatives. Broadening the tent may again 
make it possible for the leaders of the Republican and Democratic Parties in 
the White House, Congress, and statehouses to sustain constitutional norms, but 
this time while sharing a commitment to racial equality. The sobering 
historical reality, discussed in this chapter, is that the leaders of the two 
parties have never been able to sustain norms and work together over a 
significant period of time when they have been divided over race. Put 
differently, the racial reckoning in the United States that continues to unfold 
as this chapter goes to press is likely responding in part to a history in 
which norm compliance and legislative cooperation among politicians in the two 
parties came largely at the expense of black people, who were not in “the room 
where it happened” when fateful compromises were forged.

Neil Siegel clerked for the deceased progressive Supreme Court Justice Ruth 
Bader Ginsburg, and is now professor of public & constitutional law at Duke 
University

----

(*) in: Amending America's Unwritten Constitution (Richard Albert, Yaniv 
Roznai, & Ryan C. Williams eds., Cambridge University Press, forthcoming 2021)
(Duke Law School Public Law & Legal Theory Series No. 2021-03)
rec Dec 2020 rev: May 2021)
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