No, Trump 2.0. Is Not Normal Constitutional Evolution
On every front, this administration marks a dangerous departure.
How should we understand the character of the American political present?
Are we living through the radical transformation of American democracy into a competitive (or even uncompetitive) authoritarian system?
Or are we merely experiencing the fulfillment of longstanding antiliberal and anti-democratic trends in American politics in general and the Republican Party in particular?
Or do we merely find ourselves at a rare (but nonetheless democratically legitimate) moment of rapid constitutional evolution to the right after nearly a century of consistently leftward shifts?
These possibilities form the core of one of the best essays I’ve read about the second Trump administration. Writing in the Boston Review, law professors Jedediah Britton-Purdy and David Pozen ask a seemingly simple (but in fact quite complicated) question: “What Are We Living Through?” In that essay—and in a 32-minute podcast interview Jack Goldsmith conducted with Pozen last week—they answer the question in a way I deeply respect and that I can easily relate to from my experience of teaching and writing about current affairs during the opening year of the second Trump administration.
Story 1: The Radical Imposition of Authoritarianism
The first narrative is favored by most pundits, journalists, and academics of the liberal center—the center left and center right. It holds that Donald Trump’s presidency is a radical departure from American political history and norms. Both have been firmly liberal and democratic, whereas Trump is a would-be dictator. We’re therefore living through a moment of radical discontinuity that’s culminating in an acute constitutional crisis that seeks to replace democratic self-government with “autocracy, kleptocracy, fascism, patrimonialism, gangsterism, or another cousin of authoritarianism.”
On the basis of this interpretation, those in the liberal center tend to encourage and model an all-hands-on-deck posture of “resistance” and emergency. In practical terms, this often involves an effort to forge a cross-partisan or cross-ideological “popular front” coalition in defense of democracy and in forthright opposition to incipient authoritarianism. This is how the presidential campaign of Kamala Harris ended up doing events with conservative Liz Cheney last fall and warning loudly in the final weeks of the campaign about the threat of fascism emanating from the MAGA right.
Story 2: The Fulfillment of Longstanding Anti-Democratic Trends
The second narrative tends to be affirmed by those on the left, as well as by some libertarians. Where the first account emphasizes discontinuity between the American past and present, the second one points to evidence of underlying continuity over time. American democracy has always been fragile, with individual rights recognized and enforced haphazardly and inconsistently down through the decades and centuries. The presidency has likewise been moving in a more powerful and less accountable direction for decades. This means that Trump has mainly “highlighted and exacerbated preexisting pathologies,” rather than breaking radically from a mostly laudable past and imposing wholly unprecedented authoritarian changes. Trumpism is merely a more aggressive form of what we saw, in different ways, during the presidencies of Richard Nixon, Ronald Reagan, and George W. Bush.
Given this emphasis on longstanding continuities and trends, it’s no surprise that this second story tends to be paired with much more sweeping proposals to change aspects of the American constitutional system and economic order that have supposedly landed us in our present predicament. These proposals usually involve sweeping reforms of the political system (a ban on gerrymandering; adding states to dilute the power of the right in the U.S. Senate and Electoral College; diminishing the power of the federal courts) and economic order (fighting oligarchy, monopoly, and financialization, as well as making health care and child care available to all).
Story 3: A Perfectly Legitimate Constitutional Rupture
Then there is the third and final narrative, which is favored by more thoughtful defenders of the Trump administration, as well as some independent analysts. It holds that we’re living through a perfectly (or at least potentially) legitimate “constitutional regime change.” As Britton-Purdy and Pozen summarize this outlook, the Trump administration is “following a playbook developed during the New Deal and refined in the civil rights era.” It involves “Trump’s team … employing all the tools at its disposal to reshape the balance of power across state and society in line with campaign pledges to curb illegal immigration, shrink the federal workforce, restore religion in the public sphere, and advance a ‘colorblind’ conception of racial equality.”
Think of the liberal-reform presidencies of Franklin D. Roosevelt and Lyndon B. Johnson, except with the ideological valance reversed. The right considered much of what happened during those presidencies an assault on the constitutional order. It’s more accurate to say that both involved a change of constitutional orientation that quickly came to be an accepted evolution of the nation’s fundamental law. That’s exactly what the second Trump administration is attempting to achieve, only for different ends. This implies it is striving to effectuate a constitutional rupture, but not a rupture with democracy as such.
As one would expect, affirming this interpretation of the present implies a very different kind of response to what the Trump administration is doing. Just as Democrats thought those who opposed the New Deal and the court rulings and legislative accomplishments of the civil rights era should stand down in their opposition, so those who favor the “regime change” view of the present suggest that opponents of the administration’s agenda should nonetheless allow it to proceed without suggesting it is fundamentally illegitimate. Let Trump govern, allow him to exercise the powers of the presidency, and all of this will proceed much more smoothly. To the extent that the country is inching in the direction of a genuine constitutional crisis, it’s largely the fault of “resistance” judges, lawmakers, and members of the mainstream media, all of whom refuse to accept that Trump won the 2016 and 2024 elections fair and square and should be shown the same level of deference accorded any other president.
Testing Story 3
It’s quite rare for scholars and journalists to avoid falling into one of these camps and defending its outlook to the exclusion of the others. That’s why I find Britton-Purdy’s and Pozen’s effort to give each view its due extremely helpful—not least because, as they note early on in the essay, “The stakes of this disagreement are high, the shape of it disorienting. From within each script, people in the others tend to look either dangerously complacent or risibly hysterical. Americans are deeply divided not just over partisan preferences or ‘alternative facts’ but over the basic direction and meaning of our politics.”
I find myself having to come to terms with the fact that I have embraced all three outlooks at various times over the past year. In the months immediately following Trump’s second inauguration, when the new administration was moving at breakneck speed in multiple directions at once and I was attempting to make sense of it all while teaching a course at the University of Pennsylvania called “Trump 2.0,” I inclined toward the first story. But at other times, like in a recent op-ed for the New York Times about the past and possible future of the GOP, I emphasized long-term continuities on the American right. And then there are times when I’ve wondered if Noah Millman—not at all a Trump supporter—was right, back in February, to note present-day parallels to prior constitution ruptures.
I will admit that there’s a real comfort in embracing the third story. During the 1930s, those who favored the laissez-faire policies of the Harding, Coolidge, and Hoover administrations were right when they said that the New Deal’s many moves to expand the power and scope of the federal government were unprecedented and seemed to defy core American assumptions about limited government going all the way back to the founding period. Some even suggested it amounted to a dictatorial power grab. That’s certainly how a majority of Supreme Court justices viewed FDR’s program—at least until it relented and accepted the legitimacy of the shift toward modern liberalism.
Might that be what we’re living through now? Something that to many of us looks and feels like authoritarianism but is merely a change of orientation that before long will become a new American normal?
As I said, that would be a kind of relief, because it would mean what’s happening is less ruinously destabilizing than a collapse into outright authoritarianism.
Unfortunately, though, the evidence for such a legitimate democratic shift is pretty weak. FDR won his first election, in 1932, with 57.4 percent of the vote. That rose to 60.8 percent in 1936. His party, meanwhile, picked up 97 seats in the House and 12 in the Senate in 1932. After the 1936 election, Democrats controlled the House by the enormous margin of 334 to 88 seats, while their margin in the Senate (75 to 17) was no less jaw-dropping.
If that isn’t a democratic mandate for change, I’m not sure what would be. Trump, by contrast, was re-elected with 49.8 percent of the vote, while his party’s hold on both houses of Congress is razor thin.
More importantly, Trump has violated laws and norms of democratic governance to a more extreme degree than FDR or LBJ ever dreamed of doing. He’s ended the Justice Department’s independence and turned it into a vehicle for rewarding his friends and punishing his enemies. He’s usurped congressional authority on imposing tariffs, as well as hiring and firing the heads of ostensibly independent agencies. He’s bombed a series of Venezuelan boats without congressional authorization and without providing any evidence to Congress or the public to back up assertions that the vessels were being used to advance what the administration calls “narcoterrorism.” He’s deployed the National Guard, as well as masked and unbadged ICE officers, to cities over the objection of local officials, and sometimes in violation of court orders. And he’s pushed personal corruption far beyond anything seen before, most recently in demanding his own Justice Department pay $230 million in compensatory damages for investigating and bringing criminal charges against him during the Biden administration.
Regardless of his popular mandate, these and many other acts make the second Trump administration something far more radical than a legitimate constitutional evolution.
Stories 1 and 2 for the Win
If Trump had chosen to govern with a lighter hand and sought to convert more voters to his side with demonstrations of good will and competence, he and his party might have gained in approval over the past year, giving them a stronger hand to play, while also avoiding his most egregiously dictatorial and corrupt acts. But of course, he chose the reverse—to act boldly and recklessly on every front all at once, which has led his own and his party’s approval to tank, thereby weakening his hand going forward.
That isn’t a foundation for a legitimate shift of constitutional orientation. On the contrary, it could be an occasion for even more egregious and illegitimate seizures of presidential power. Which probably means that our good-faith disagreements about what we’re living through should remain focused on the first and second stories and relegate the third to the category of self-justificatory propaganda for the right’s autocratic ambitions.
What are we living through? Something pretty darn dangerous, regardless of how far back we’re inclined to trace its roots.
Damon Linker writes the Substack newsletter “Notes from the Middleground.” He is a senior lecturer in the Department of Political Science at the University of Pennsylvania and a senior fellow in the Open Society Project at the Niskanen Center.
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A note about David Pozen... quite a bright guy, no doubt, but back during my time writing for Columbia Law School I had to promote a rather eyebrow-raising journal article that he wrote about constitutional "Self-Help." Essentially, he was arguing that when Congress didn't fulfill its obligations according to unspoken norms, the executive branch might very well be enacting totally legitimate "self-help" to go ahead and do via agency what Congress was refusing to do via legislation. It was an article that I had a ton of ethical compunctions about promoting, because it came awfully close to endorsing autocratic unilateral rule by the Obama White House since congressional Republicans weren't rubber stamping his agenda.
No doubt Pozen is in earnest -- his article was a tidy summation of the zeitgeist on the legal left at the time -- but given his paper trail he's simply not a viable critic of another administration seizing maximalist executive power. What's good for the goose is good for the gander.
I'm a retired lawyer, and I have a different view. No matter which of the three stories you accept, there is a bottom line in our constitutional structure, and that is the politics of the voters. That is where power comes from. If there is a change happening, it is in what voters will accept.
All elected politicians use their judgment about where their constituents are politically, and at a minimum, what they will live with. This is a bet; sometimes the elected are right, sometimes not.
Donald Trump is coloring way outside the constitutional lines, because this is his second term and he won't be getting another. This is not normal. Some presidents have pushed the envelope, but none has encouraged a governmental coup, used the military time and again against states and cities; declared war against drug dealers and then bombed boats without even trying to present any evidence for why, much less get congressional approval; tariffed the entire world, and God knows what tomorrow will bring. Trump is betting that "his" GOP will continue protecting him with their neglect, and so far he's been right.
But members of Congress, too are making a more direct and ultimately politically accountable bet. They are judging that their constituents will let Trump keep doing what he's doing, and that their constituents, particularly those of House members and Senators up for reelection will continue to live with Trump's actions and Congressional la-di-dah. So far there hasn't been much response in the country, though there are signs that is changing.
There is some chance that the Supreme Court will hold the line on some separation of power questions. That is their job, and I can see them doing it, though that is something I'll be keeping an eye on.
But in the end, my bet (I was never elected to anything, so I speak only for myself) is that Trump's overreach will ultimately have some effect. A good number of folks who voted for him will accept anything he does. But a lot of people voted for him, not because they loved him but because they hated Kamala Harris and the Democrats more. It's those folks who I'm most interested in, and who I think congressional Republicans are thinking about too.
If they are willing to accept Trump, then it's fair to say we don't have a constitutional crisis, we have a political one. Or if it's not a crisis, it's a political shift of enormous magnitude. The Constitutional doesn't just allow politics, it depends on them. And politics does change. I'm hoping that's not true, but Aldous Huxley is definitely top of mind. Orwell posited dictatorship coming from the top down, while Huxley saw it coming from the bottom up -- from our own addiction to self-chosen comforts and pleasures.
That's what I worry about most, because no Constitution and no laws can ever address that in a government based on liberty.