I’ll start with an analogy.
When you walk into a store—say Target, for example—the default presumption of everyone involved in the transaction is that you'll pay for the items you put into your cart. If you shoplift, you might get caught, but you might not, which is why Target’s bottom line has a built-in buffer for fraud and theft.
Still, shoplifting and theft are not presumed. If they were, Target would be out of business.
It would be impossible for Target to catch every shoplifter. Target depends on its customers to adhere to certain norms—an honor code, basically. There’s an implicit expectation that just because you can get away with something doesn’t mean you’ll try or you will. Not because you expect to be caught, necessarily, but at least in part because you're guided by an underlying moral compass oriented toward the social compact.
It might be religious (thou shalt not steal) or it might be secular, but either way, it’s coming from internalized morality of some kind. Yes, shoplifting is illegal, but it’s also perfectly easy to get away with, and yet most people don’t shoplift or stores couldn’t exist.
When you walk into a store—say Target, for example—the default presumption of everyone involved in the transaction is that you'll pay for the items you put into your cart. If you shoplift, you might get caught, but you might not, which is why Target’s bottom line has a built-in buffer for fraud and theft.
Still, shoplifting and theft are not presumed. If they were, Target would be out of business.
It would be impossible for Target to catch every shoplifter. Target depends on its customers to adhere to certain norms—an honor code, basically. There’s an implicit expectation that just because you can get away with something doesn’t mean you’ll try or you will. Not because you expect to be caught, necessarily, but at least in part because you're guided by an underlying moral compass oriented toward the social compact.
It might be religious (thou shalt not steal) or it might be secular, but either way, it’s coming from internalized morality of some kind. Yes, shoplifting is illegal, but it’s also perfectly easy to get away with, and yet most people don’t shoplift or stores couldn’t exist.
In short, the baseline default of relative, majority honesty is the glue of the social compact, and it’s what keeps us functional. It's a key and material distinction between sociopaths and non-sociopaths.
Now let’s apply this analogy to the Trump administration as we’ve known it up to now.
Trump and the people around him are not on board with the social compact or the framework of American democracy. They are walking into Target with a plan to shoplift everything they can, whether they ultimately get away with it or not. They’re willing to risk getting caught, because “getting caught” really doesn’t mean much. They know their malfeasance will likely overwhelm the weak enforcement mechanisms of a spineless Congress—the equivalent of Target’s unarmed, half-alert private security guards; and in the meantime, they'll raid the Republic and sell it for parts.
Again, it is not some law of physics that American constitutional democracy should continue to work. It only works because everyone agrees that it should AND acts like it.
Now let’s apply this analogy to the Trump administration as we’ve known it up to now.
Trump and the people around him are not on board with the social compact or the framework of American democracy. They are walking into Target with a plan to shoplift everything they can, whether they ultimately get away with it or not. They’re willing to risk getting caught, because “getting caught” really doesn’t mean much. They know their malfeasance will likely overwhelm the weak enforcement mechanisms of a spineless Congress—the equivalent of Target’s unarmed, half-alert private security guards; and in the meantime, they'll raid the Republic and sell it for parts.
Again, it is not some law of physics that American constitutional democracy should continue to work. It only works because everyone agrees that it should AND acts like it.
So when does it *really* stop working?
I posed that question—in person—to Erwin Chemerinksy, a constitutional law scholar and dean of Berkeley Law School, who spoke at this year’s Alaska Bar Convention. His answer, loosely paraphrased, was “the minute Trump ignores a Supreme Court order.” At that point, Dean Chemerinksy said frankly, “nobody’s constitutional rights are safe.”
Why?
Because at that point, the chief executive has ceased to honor norms that have made the three branches of government function in balance for the past 240 years.
I posed that question—in person—to Erwin Chemerinksy, a constitutional law scholar and dean of Berkeley Law School, who spoke at this year’s Alaska Bar Convention. His answer, loosely paraphrased, was “the minute Trump ignores a Supreme Court order.” At that point, Dean Chemerinksy said frankly, “nobody’s constitutional rights are safe.”
Why?
Because at that point, the chief executive has ceased to honor norms that have made the three branches of government function in balance for the past 240 years.
The President’s reported threats to fire special counsel Robert Mueller, who is investigating the Trump-Russia fiasco, would be a step in that direction, preceded only by Nixon's brazen, norm-busting Saturday Night Massacre. Publicly disparaging, or worse—ignoring—a Supreme Court order makes Trump’s abdication of democratic norms a fait accompli.
The President’s Twitter feed is a useful window into his disregard for democracy and penchant for propaganda, and the courts are increasingly taking it seriously. They ought to, because Trump is stretching the fabric of the Republic to its breaking point.
Set aside the rise in hate crimes and assaults on journalists. Just look at the President's six most recent tweets. In 840 characters or less, he shows more contempt for democracy and raw fascist instinct (it’s generous to call it more than instinct) than any President in living memory:
The President’s Twitter feed is a useful window into his disregard for democracy and penchant for propaganda, and the courts are increasingly taking it seriously. They ought to, because Trump is stretching the fabric of the Republic to its breaking point.
Set aside the rise in hate crimes and assaults on journalists. Just look at the President's six most recent tweets. In 840 characters or less, he shows more contempt for democracy and raw fascist instinct (it’s generous to call it more than instinct) than any President in living memory:
- He maligns the judiciary and implicitly threatens the Supreme Court. (Not illegal, but not remotely normal for a President).
- With a sinister precision, he co-opts the language of his opposition: (“resist!” and “agenda of hate”) to confuse and gaslight his detractors and convert himself into the narrative's victim. (A classic psychological manipulation tactic deployed by autocrats and domestic abusers).
- He demands a personal apology from the press, calls the media “fake,” “wrong,” “dirty,” “phony,” and “purposely incorrect.” (Again, not illegal, but utterly contemptuous of the First Amendment and literally what Hitler did in Nazi Germany to discredit the press).
These norm-defying statements are not illegal in and of themselves, of course, but they erode the default presumption of honesty and normalcy, in service of covering for unconstitutional conduct that Trump is betting will go unanswered.
The silver lining here is the tactical advantage of predictability. American democracy is under an insidious and unprecedented assault, but while it might be unprecedented here, it’s not unprecedented elsewhere and therefore it's not unpredictable.
Like all strongmen and autocrats, Trump is nothing if not predictable. (See below for my 24-hour prediction of his tweet on the Ninth Circuit TRAVEL BAN ruling).
American patriots can—and must—use this predictability to anticipate productive dissent. Make no mistake: American democracy is in for the fight of its life.
