31st March 2025
What constitutional commentary can do and what constitutional commentary cannot do
There are many who are anxious and alarmed at what is unfolding in the United States.
And they are right to be anxious and alarmed – indeed, any other overall response would be strange given what is happening.
There is a certain cruelty in a good deal of what the US government is doing with its executive orders and other measures – and cruelty which is an end in and of itself.
As Adam Serwer rightly out it in his prescient 2018 article and subsequent book, this cruelty is the point.
Nothing in this post should be taken to gainsay this sense of anxiety and alarm – and still less to dismiss or discredit it. It is a perfectly sensible reaction to an unpleasant developing situation. There is nastiness and vileness, and it is horrific.
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This post instead is about the limits of constitutional (and legal and perhaps even political) commentary to meet this anxiety and alarm.
For example, there is only so many times a constitutional commentator can usefully respond to the increasingly common “But what if…?” queries about possible future developments.
Today, one issue is about whether President Trump will somehow find a way to serve a third term, notwithstanding what appear (at least at first glance) to be a clear prohibition in the US constitution.
– But what if….he tried?
Well, the constitutional commentator may respond, there are these provisions in the US constitution which would appear to prohibit such a thing, and if those provisions were contested or defied it would be likely to ultimately end up at the supreme court.
– But what if….that did not work?
And it is at this second “But what if…?” that constitutional commentary effectively breaks down and offers no further useful aid to the person pressing for further answers.
A constitutional commentator may perhaps have a go at putting together a further answer, if they are feeling helpful, but both the questioner and the commentator are now leaving the realm of constitutional commentary and entering the world of speculation instead.
For there is only so much a constitutional commentator can say in response to “But what if…?”.
They can set out what the constitution provides for that eventuality and what mechanism can be applied to resolve any tension or dispute. But that is all they can do, for that is all a constitution is.
As a general (not universal) rule-of-thumb, the second “But what if…?” is the limit of any useful exchange about any constitutional query.
With the third and fourth “But what if…?” the value of any constitutional commentary will tend to fall to zero.
And that is because of the nature of constitutional arrangements: they only provide “the rules of the game” for foreseeable situations.
(In addition, few if any constitutional commentators are competent or qualified to deal with the anxiety and alarm of others. Indeed, constitutional commentators are (if they are candid) likely to make such anxiety and alarm even worse.)
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All this said, here are some general points about the current constitutional situation in the United States which may provide some comfort.
First, the US government is (or is insisting) that it is complying with court orders. Yes, there are political and media figures boasting about breaching “unconstitutional” court orders – but in the court room, the US government lawyers are saying orders are being complied with.
Second, Trump and his supporters are again seeking to game the US constitution rather than breach it outright. You may recall the “January 6” violence was in respect of an attempt to get the vice-president and senate to exercise their constitutional function in respect of counting and certifying the electoral college in the favour of the losing candidate.
That clever-clever, elaborate (and misconceived) constitutional ploy failed, regardless of the violence. There is no more inherent reason to believe that the new clever-clever, elaborate (and misconceived) constitutional ploys for a third term will work.
Third, the federal executive does not have a monopoly of political power: even with a weak legislature, the federal judiciary and the states also have powers. Any analysis of scenario needs to take account not only of what powers the federal executive have (or wants to have) but which ones it does not.
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At this point, a constitutional commentator setting that there are other possible outcomes than catastrophe is accused of “complacency” or “optimism”.
Alas, I am a deep pessimist when it comes to constitutional matters.
My pessimism is deeper than many will imagine.
For me it is a minor miracle that any human gathering greater than Dunbar’s Number ever endures, without breaking up in violence and recriminations.
(It really is not a surprise that every other species in the genus Homo became extinct, despite us supposedly being the most intelligent creatures to have yet evolved: and Homo sapiens have this immense capacity for violence against other members of our own species, and the capacity to make tools as weapons for this violence.)
Constitutions are precarious things, and at some point they will all tend to fail.
The questions are when and how.
The pre-conditions are there for the US constitution to fail – and for the current crisis to become either a civil conflict or the basis of a totalitarian state.
But at the moment, there are still other possible, more positive outcomes.
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Again, setting out the limitations of constitutional commentary is not to gainsay the current alarm and anxiety.
And “But what if…?” can actually be a useful question the first time it is asked – and, indeed, thought experiments are sometimes helpful or revealing.
But an infinite regression of “But what if…?” questions to a constitutional commentator helps nobody. It does not help the questioner, for no answer will address the underlying alarm and anxiety, and it does not help the commentator, who will have no useful answers.
The only thing that constitutional commentary can do is to look at the constant stream of heres-and-nows, and to set out contexts and possible outcomes.
It is a plodding, limited, often thankless task.
And let us hope that one day, constitutional law becomes dull again.
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But what if…. constitutional law never becomes dull again?
But what if… the constitution is unconstitutional? This is the moment the United States and the rest of world comes to understand the pointlessness of a written constitution. It’s not the Ten Commandments. A written constitution isn’t worth its parchment without goodwill and anxious scrutiny.
Depressing. Really.
Like going back to the 1930’s after the Enabling Act and thinking ‘Well, they wouldn’t, would they?’
And they did ………….
If you want to feel the depths of despair, read Piers Brendon ‘The Dark Valley’.
Also perhaps Tobias Buck ‘The Final Verdict’ and ask what one is supposed to do to avoid complying with the orders of a totalitarian government. A few might have got away with applying for transfers away from a death camp, but if many applied the regime would have clamped down. After all, it’s about who has the monopoly of power … and who hasn’t.
The blog title reminds of the ancient Chinese curse “May you live in interesting times”.
Constitutions are only as strong as the body politic as a whole is willing to actually enforce them. I’m inclined to agree with the focus of this posting – Trump and his government are pushing the boundaries of the law, seeing what they can get away with, but I doubt they will openly defy it. In this respect, I think Trump is a little more cautious than JD Vance (who did produce the famous, possibly apocryphal, quote of an earlier President: ‘The Chief Justice has ruled, now let him enforce it’). Trump will breathe fire in his language, but in practice has consistently stopped short of openly defying a court, and I doubt that will change.
In relation to the Third Term, my guess is that the main motivation is to help Trump overcome the lame duck tendency for later stages of his term. If he can keep alive the possibility of some constitutional audacity to gain a third term, then he will be more likely to hang onto real power right up to the end of that term. But there are only really two routes I can see of him actually HAVING a third term – 1) change the constitutional amendment that currently forbids it (a complete non-starter as it requires major acquiescence from Democrats in Congress and State Legislatures), or 2) simply defy the law and run anyway, arguing it’s the people’s right to have as much Trump as they want (even this Supreme Court will surely produce a clear majority against this, and I don’t see Trump defying such a ruling, in the end).
Though maybe I’m wrong, and we will see! If Trump does run for a third term, in defiance of the law, I think we would see major civil disturbance. But hopefully by then things will have become a bit duller again as Trump recedes into history (as a cautionary tale of what the American people are willing to vote for).
“For me it is a minor miracle that any human gathering greater than Dunbar’s Number ever endures, without breaking up in violence and recriminations.”
I can see the logic in this statement, and certainly with many of the things going on in the world at the moment, there’s no shortage of evidence of the impact of selfish individuals carrying out selfish actions on a large scale. Which leads to the kind of catastrophising that people are doing at the moment.
But if I can offer perhaps a slight challenge to that – in the spirit of positivity – there is also great evidence that a kind of altruistic collectivism is the default state for humanity.
Richard Dawkins makes the case, in his slightly misleadingly titled book, The Selfish Gene, that altruism is an inherent genetic characteristic of humanity (and other animals besides), and one of the major reasons why homo sapiens have been able to thrive. It has a clear biological and evolutionary advantage – as George RR Martin put it “The lone wolf dies, but the pack survives”. It’s a characteristic that’s hardcoded into our DNA through billions of years of evolutionary filtering.
Yes it’s easy to look back over recorded human history and pick out periods of horrific human violence, but these periods are noteworthy specifically because they deviate from the norm. Collectivism is the mechanism by which individuals gather into communities, into nations, into systems of governance that protect people from harm. It’s through the formation of these structures that human societies grow and thrive. Great human societies have risen and fallen through the millennia, yet almost all have in common an underpinning sense of ethics, fairness, morality, and justice. The protection of the individual from harm by their fellow person. The responsibility for a person to act collectively for the good of the community.
A lot of the retrospective commentary about the years where COVID raged, focus on the actions of selfish individuals. Yet for me the most enduring memory about that time, was how the overwhelming majority of human beings on the planet, came together (metaphorically) and made enormous personal sacrifices to keep each other safe. It’s easy to look at the things happening in the US, in Ukraine, in Gaza, and despair of the selfishness and brutality of humanity. But when it comes down to it, almost all the challenges humanity faces are solved by a collective effort to stop the actions of selfish individuals from doing harm.
So this is what I try to keep in mind when considering how things will pan out over the coming years. That people like Trump are the exceptions, not the norm. That when it comes down to it, we have a sense of ethics and morality that run so deep we feel them in our bones. That most people baulk at the idea of tearing down our systems of law, justice, and governance, in the service of the selfish doing harm. And that it’s through the effective use of these institutions, rather than setting them aside in favour of violence and chaos, that human society will continue to endure.
As someone fascinated by early law and institution formation, I am not with Dawkins on that (as indeed I am not on many things).
I’m afraid that the overwhelming majority of humanity didn’t look out for one another – did the rich supply the poor Ruth adequate vaccines?
Since violence really is the great concern here, there may be some support for your optimism from some of the work on combat. Dave Grossman’s ‘On Killing’ reviews a wide range of eviden on things like firing rates, the proportion of soldiers who, with a rifle in their hands and faced with an enemy trying to kill them, either don’t fire, or deliberately aim to miss. There’s testimony as far back as classical times, when soldiers frequently gave slashing blows rather than penetrating wounds (which pre-antibiotics were usually fatal). It’s stuff that armies have historically wanted good data on.
Overwhelmingly the evidence shows that men don’t want to kill and will resort to almost any strategy on the battlefield to avoid killing. Modern armies have become skilled at overcoming that innate resistance, and I suspect that some political strategists have been learning to do what armies now do to predispose men to lethality.
But the bottom line is, people don’t like to kill people.
Or the bottom line is, people can be made to want to kill people.
Hey ho. I incline, personally, towards pessimism, but I’ll take what vain hope there is going.
One of the reasons that institutions are important is because, I suggest, Dunbars number might be able to include them in the count. Governments, charities, commercial organisations – and even bits of the larger organisations we might work for – exist in our brains and have personality including trustworthiness. Society at scale works where organisations seem to follow the behaviours that a human might, so a single institution can wrap up the collective behaviour of its members. Nation states included!
The whole thing is so atrocious that I’ve almost gone past worrying. This is a comfort in its way.
Thanks for this thoughtful post, David. You’ve articulated something I’ve been thinking about – constitutions are indeed precarious things in the grand sweep of human history.
When we consider that humans have lived in Dunbar’s number groups for over 200,000 years, constitutional governance is barely a blip – just a few hundred years at most. They’re fragile human inventions that can be broken by humans. Your pessimism about constitutional systems resonates with me.
I appreciate your point about the diminishing returns of “but what if?” questioning. There’s only so far constitutional analysis can take us before we’re in pure speculation, and that endless speculation probably increases anxiety rather than addressing it.
Your observation about the Trump administration trying to “game” rather than outright breach the constitution is particularly insightful. It’s a distinction worth keeping in mind as we navigate these uncertain times.
Thanks for bringing clarity to both the limitations and value of constitutional commentary in this moment.
The Devil appealed his trial against my own God’s Kingdom. The appeal was denied and more additional charges against the devil. After creation man accepted to appeal on behalf of the devil,The appeal was denied and more additional charges against man and the devil. “It doesn’t make sense to represent Evil.”
For the record, “Homo Sapiens” is singular, both bits. Despite what I have often heard on the radio, there’s no such thing as a “sapien”.