In 2016, at the convention approving Donald Trump’s nomination, the GOP platform contained this flat assertion: “We are the party of the Constitution.” In 2020, Republicans repeated the declaration, verbatim. In the 2024 platform, there were various nods to that document, but that blithe boast did not appear.
That is just as well, because both generally and in various particulars, MAGA Republicans have forsaken fidelity to our nation’s charter.
Let’s start with the Commando-in-Chief. At the most basic level, he evinces zero respect for, fealty to, or understanding of, the Constitution. In May, NBC’s Kristen Welker asked him, in the context of discussing due process rights for migrants, “Don’t you need to uphold the Constitution of the United States as president?” He answered like an ignoramus for the ages: “I don’t know. I’m not – I’m not a lawyer. I don’t know.” Olympic-level MAGA apologists might try to explain away his answer, but he swore an oath – TWICE – that he would “to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
Can you guess where that oath comes from? The Constitution itself. It’s in Article II, Section 1, Clause 8. It’s the only oath explicitly mandated by the Constitution for any federal official. I’ve taken it twice myself. [Of course, the obligations of that oath are arguably limited by the phrase “to the best of my ability.” So I suppose Trump could argue a personal exemption based on congenital inability.]
Let’s look at some particulars.
- Birthright citizenship? Nah. Everyone has gotten this all wrong, all along, notwithstanding the plainest conceivable language (“All persons born. . .in the United States, and subject to the jurisdiction thereof, are citizens of the United States. . .”).
- Third term? Sure, why not. It may have taken a Constitutional amendment to limit Presidents to two terms, but a clever MAGA lawyer can always advocate for the opposite of what that document actually says (“No person shall be elected to the office of the President more than twice. . .”).
- Habeas corpus, the right to challenge in court one’s unlawful detention? What in the heck is that, DHS Secretary Kristi Noem seemed to say at a Congressional hearing last week, knowing nothing about the Great Writ, much less its place in the Constitution or who might have the authority to suspend it and under what circumstances (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”).
All this from the party of the Constitution. Also often self-branded as the party of Patriotism.
Let me state the obvious: A patriotism that perverts and ignores the Constitution is no patriotism at all. A patriotism that pays lip service to the flag, but bears little allegiance to the Republic for which it stands is the opposite of love of country.
The true Gulf of America is the chasm between the granite of the Constitution’s text and the slippery sand of Trump’s passing policy fancies. For Magapublicans, the Constitution is not fundamental; it is not foundational. It is nothing more than a set of quaint governing tips. No Trumpian initiative is ever precluded by the plain text of the Constitution, as understood by every good faith judge and scholar.
By the way, the MAGA folks play the same game with centuries-old statutes too, and judicial orders. Only the President can say what an “invasion” means under the Alien Enemies Act, and courts are powerless to disagree. And when a court directs him to facilitate a wrongly-deported man’s return to the U.S., the President knows better what the court itself meant by “facilitate.”
There seems to be no presidential power sought by Trump that his supporters would begrudge him under the Constitution. And they will not balk at any legal longshot put forward to undo another President’s pesky action – maybe Biden’s pardons are invalid because they were possibly done by autopen? Sure, why not.
Trump’s is the ultimate Loophole Presidency – to excuse any action Trump might want to take and to justify undoing any action or right, whether done or established by Congress or the Courts,
People often say the problem here is a lack of civic education. If only some things were taught or taught better or taught more widely, we might not be in this predicament, this sea of civic misunderstanding about so many things – separation of powers, judicial review, due process, etc. and etc. and etc.
This is only half right.
For education to occur, two things are required. One needs a teacher capable of educating. But that’s not enough. One also needs a student who is educable. And if you are in a churlish cult with a leader believed to be infallible, you are not particularly educable. So civic education has its limits.
Now, back to the Constitution.
While the GOP in 2016 was declaring itself the party of the Constitution, the DNC at its own convention that year showcased a speaker who begged to differ. Gold star father Khizr Khan famously directed a pointed question to nominee Trump: “Let me ask you: Have you even read the United States Constitution?”
Nine years on, there is still no evidence that he has.
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