Election 2016

If Trump Wins, Libertarian Legal Scholar Randy Barnett Wants a New Party

Says it will be time for an "American Constitution Party." Isn't it *always* time for an American Constitution Party?


As noted here yesterday, the prospect of Donald Trump winning the Republican presidential nomination or the actual presidential election in November has spurred all sorts of responses from members of and fellow travelers with the GOP. Two examples: Radio host Hugh Hewitt has said he's all in for whomever the Republicans nominate while freshman Nebraska Sen. Ben Sasse claims he'll never vote for The Donald.

Then there's the libertarian legal giant, Randy Barnett of Georgetown Law School.

As one of the architects of the legal challenge to Obamacare's individual mandate, Barnett is an outspoken opponent of governmental overreach who is often critical of the Republican Party's own excesses on that score. At the same time, he has never been shy about calling out what he says is "the mistake that is the Libertarian Party." Despite his anarchistic tendencies, Barnett has long held that third parties are wasteful indulgences in a two-party system such as our own.

And yet here he is, in USA Today with a full-throated cry to establish a new political party if Donald Trump actually becomes the GOP's presidential nominee:

[Trump has] made clear he cares nothing for the constitutional constraints on the president, or on government generally. His ignorance of our republican Constitution — to match his ignorance of much else — and his strong-man approach to governance would make Trump's election a political cataclysm second only to Southern secession in its danger to our constitutional republic.

For this reason, millions of patriotic Americans who would ordinarily vote GOP — including most conservatives and all constitutionalists — will never vote for him. Yet were he somehow to win without them — say by moving to the left of Hillary Clinton to capture the Sanders vote — a Trump presidency would doom America as an exceptional nation.

Well, maybe. I think the threat posed either by Trump winning the GOP nomination or the actual election come Novermber is overblown. There is no doubt that Trump has little to no idea how the goverment actually works (hence his inane discussion of his sister the judge "signing" legislation just like Samuel Alito of the Supreme Court!). And his natterings about "opening up" libel laws so he could more easily sue The New York Times and other media that criticize him. At the very least, such sentiments display a touch of Berlusconi that should be anathema to Americans, legal and illegal. Yet this sort of skylarking strikes me as similar to Ted Cruz (a Harvard Law grad, right?) braying about "judicial retention elections" for Supreme Court justices (both Cruz and Trump are also sour on birthright citizenship, too). Which is to say: Such ideas are idiotic, contemptible, outlandish, and…more impotent than a Hemingway protagonist. Emperor Trump ain't gonna happen, for all sorts of reasons that I'll get to in a second. 

At the same time, Barnett is right that Trump is a profoundly stupid and ignorant man. Indeed, he's ignorant in the way that only billionaires can pull off (because only the very rich can afford to surround themselves with so many yes men that they never learn when they are wrong about anything). But being stupid is no crime in America and especially in the nation's capital.

I may be overly jejune about it all, but I see a Trump candidacy and/or White House stay as quite possibly a powerful refresher course in civics and citizen engagement. As libertarian-leaning Rep. Justin Amash told Reason in a new interview at the International Students for Liberty Conference last week, Trump "cares about power. He doesn't really care about things like the Constitution. And I'm concerned that he could push us in a very dangerous direction." But I'd say it's far more likely that both the GOP and Democratic members of Congress would dust off the Constitution, a document they all spent plenty of time ignoring so far in the 21st century, and get serious about limiting government the minute Trump started barking orders.  

Having said that, Trump's comments and ire directed at immigrants, particularly Mexicans, are truly vile and disturbing, all the more so because they are redolent of fascist big men who are always yapping about homelands being invaded by people who come here to cut your grass on the cheap. My hope there is a Trump candidacy or even presidency will flush the nativist sentiment not just out of the Republican Party but out of acceptable political discourse. The dirty secret of U.S. politics is not that we don't like immigrants (even illegal ones) but that we actually love immigrants (even and maybe especially illegal ones). Last summer, for instance, even as Trump and most of the other GOP candidates were denouncing immigrants, "sancturary cities," the popularity of soccer, and the like Gallup found that 65 percent of Americans favored a "path to citizenship" for illegal immigrants. In fact, even 50 percent of self-described Republicans did. Not just legalization, but citizenship.

And let's be clear: Trump may be the one who has most fully seized on being anti-immigrant as a political issue, but he's far from alone among Republicans in pushing such a nativist agenda. Ted Cruz, for instance, has called for deporting all 12 million (or so) illegals, and back in 2012, Mitt Romney called for "self-deportation" as a way to forestall forced deportation (what a sweetheart).

When George W. Bush introduced his version of the Dream Act after winning re-election in 2004, it was his fellow Republicans as much as pro-union Democrats who strangled the plan in the crib. And diehard GOP stalwarts such as Sen. Jeff Sessions of Alabama (who has counseled both Trump and Cruz on the issue) and Rep. Steve King of Iowa (who has repeatedly likened migrants to livestock and mocked the "cantaloupe calves" of Mexicans trying to better their lives aren't exactly outliers in the Party of Lincoln.

Which isn't to say I disagree with Barnett's call for a brand-spanking-new party:

What the nation needs is a new party that is expressly dedicated to upholding the Constitution of the United States, however it may cut politically — a party that can attract principled conservatives, but also any American who is tired of crony capitalism, runaway government and rule by an out-of-touch political class….

Parties die. The Whigs died because they could not bring themselves to stand against the Democratic Party that overwhelmingly supported or, at least, tolerated slavery in the South and its extension into the territories, thereby threatening the North. So a new Republican Party very quickly arose to replace it. Now the national GOP establishment's failure to listen to the people is on the verge of giving us Donald Trump. If it does, it deserves to be replaced by a party that puts the Constitution first and politics second.

It is (almost) time for an American Constitution Party.

Read the full article.

Yes, it's always time for an American Constitution Party. And the plain fact of the matter is that each of the existing major parties, whose origins date back to before the Civil War, have violated the spirit and letter of the Constitution so frequently and pervasively each deserves to go the way of A&P, Woolworth's, Enron, the Canton Bulldogs, and other once-great institutions of the United States.

I'll add just this much: The Democratic Party establishment is no great shakes, either. Bernie Sanders' campaign will almost certainly die tonight, but the fix was in on him from the get-go, thanks to the Dems' super-delegate scam and other processes that all but awarded the nomination to Hillary Clinton before the primary process ever got started. And yet, just as the GOP establishment failed to realize how angry Republican voters and independents were after eight years of an awful, out-of-control George W. Bush presidency, so too are Democrats and independents pissed at Obama. He got everything he wanted in his first two years, which is the main reason why the Republicans clawed their way back to at least partial power in Congress. Since then, Obama has shredded the Constitution when it suits his purposes, obfuscated about all sorts of terrible policies such as secret kill lists and unacknowledged drone wars, and simply failed in producing any sort of tangible successes in improving the economy or America's standing in the world. At least in her fight against Sanders, Clinton has portrayed herself as a champion and inheritor of President Obama's policies. Good luck getting elected with that as a platform.

Then again, against Candidate Trump, how can anyone lose…?