The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Relatively few defend Donald Trump's awful statements and Tweets. But many—including some libertarians—tend to dismiss them as mere "talk." In a world where there are many horrible and unjust government policies that undermine liberty and inflict great harm, why worry about mere rhetoric? It is certainly true that rhetoric, in and of itself, is not as bad as actual injustice. But Trump's rhetoric is nonetheless a more serious problem than those inclined to dismiss its significance are willing to admit.
The significance of Trump's words is well-captured in recent articles by libertarian political theorist Jacob Levy and law professor Bob Bauer. I don't agree with all of the points they make. But they are right about the bottom line. Political rhetoric matters because, among other things, it can expand the boundaries of what is politically feasible. As Levy puts it:
This seems to be part of a broader developing idea: ignore the tweets. Ignore Trump's inflammatory language. Ignore the words. What counts is the policy outcomes. People took Trump's "American carnage" inaugural address seriously, but after an exhausting year, it's tempting to find an excuse to stop listening….
I have a hard time believing that anyone really thinks like this as a general proposition. Certainly conservatives who spent the postwar era reciting the mantra "ideas have consequences" didn't think the words that carried political ideas were impotent. The longstanding view among conservatives was that Churchill's "Iron Curtain" speech and Reagan's call to "tear down this wall" were important events, words that helped to mobilize western resistance to Communism and to provide moral clarity about the stakes of that resistance…..
Politics is persuasion as well as coercion. Immediate policy outcomes mainly have to do with coercion: who is taxed, regulated, expropriated, imprisoned, deported, conscripted, what wars are fought, who is kept out of the country by force of arms. This can't be neglected, of course… But many… underestimate the importance and power of political speech, often under cover of seeming hard-headed and practical…
Within the electorate, the speech of elites matters in a couple of different ways. A large part of the population begins with a tribal sense of what team they're on, which side they support, but relatively little information about the substantive policy views associated with that. Thanks to Trump's Twitter feed and Fox News (and the strange reciprocal relationship between them) the Republican and conservative rank and file now have an unusually direct, unusually constant source of information about the things that people like us are supposed to believe and support. I think that we can see the effect of this in the rapid and dramatic swings in reported Republican opinion on questions from free trade to Russia policy. Trump's stump speeches and unhinged tweets, and Fox News' amplification of them, are changing what Republican voters think it means to be a Republican. He doesn't speak for them… He speaks to them, and it matters.
When Trump claims it is "treason" to refuse to applaud his State of the Union, denounces "so-called judges" for ruling against his policies, and threatens to use the regulatory powers of government against his critics, he may not (yet) be able to act on these sentiments. But the fact that he says such things makes these ideas and others like them more thinkable than before. That, in turn, increases the likelihood that Trump or a future president will act on them. Anything supported by the leader of one of the two major parties (especially one who wins the presidency) is likely to enter "mainstream" politics, and thereby get on the list of politically plausible outcomes.
This might not be the case in a world where voters have carefully considered political views and follow policy closely. But, as Levy points out, most voters are ignorant about a wide range of policy issues. And, as extensively documented in an important recent book by political scientists Christopher Achen and Larry Bartels, committed partisans often adopt positions based on whether their party is perceived as supporting them, rather than vice versa. Rather than objectively evaluating policy, many voters act as "political fans" cheering on whatever Team Red or Team Blue advocates. That is especially true in an era of severe polarization and partisan bias, where fear of the opposing party makes partisans reluctant to criticize their own party leaders, so long as those leaders continue to lead the struggle against the hated partisan enemy. The rise of Trump has already led Republican partisans to shift their views on free trade, and take a more favorable view of Vladimir Putin, the Trump-supporting authoritarian ruler of Russia. Trump has also contributed to the GOP's massive shift away from fiscal conservatism towards spending even more money than Hillary Clinton envisioned in her 2016 campaign policy agenda.
Libertarians, in particular, should not doubt that words can matter. To the extent we have been successful in influencing policy, it is by advocating ideas that were once politically unthinkable and facilitating their entry into the mainstream. That is how libertarian economists played a key role in putting an end to the draft, and how other libertarians helped make the idea of drug legalization mainstream. But if it is possible for libertarians (and others) to use words to change the political environment for the better, it is also obviously possible for Trump to use them to make it worse—particularly when his rhetoric commands such a vast audience.
It is also worth noting that Trump's rhetoric has already helped facilitate a policy agenda that seeks to undermine federalism, separation of powers, and other important constitutional constraints on his authority. Some of these initiatives have been—or are likely to be—invalidated by the courts. But many important constraints on government power rest at least in part on norms, not judicial decisions. Numerous questions cannot even get to court because of procedural constraints, such as the doctrines of political questions, ripeness, and "standing."
Moreover, executive acquiescence to court decisions is itself a political norm, one that Trump seeks to weaken. In many nations, judicial review is not an effective constraint on rulers, in part because the latter know they can get away with violating judicial rulings that go against them. At times, that has even been true in American history, as when Southern states were often able to effectively nullify federal court decisions against their Jim Crow segregation policies. If GOP partisans come to believe that adverse court decisions are the product of illegitimate "so-called judges," such disobedience becomes more feasible—and more likely.
It is fair to point out that some of the norms and institutions Trump threatens have already been weakened by previous presidents, including his predecessor Barack Obama. But that is no reason to ignore the threat posed by Trump. To the contrary: the more institutional harm has already been inflicted by Trump's predecessors, the more urgent it is to prevent further erosion. The worse you think Obama was, the more you should be alarmed by Trump.
The fact that Trump's rhetoric could cause much greater harm than it already has is not a guarantee that it actually will do so. But the way to minimize that harm is not to ignore the rhetoric, but to ensure that he pays as high a political price for it as possible. If Trump is forced to resign in disgrace, loses reelection, or is otherwise perceived as a political failure, that makes it less likely that other political leaders will imitate him. By contrast, if his rhetoric is seen as effective (or at least not an impediment to success), it is likely to attract imitators. And some of them may well be more disciplined than Trump, and more effective at transforming awful words into awful deeds.