The Volokh Conspiracy

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Donald Trump

Trump Defines Constitutional Deviancy Down

His call for the "termination" of the Constitution is the latest in a long line of dangerous efforts to legitimate the indefensible.


Former President Donald Trump gestures in front of a row of American flags.
Former President Donald Trump. (Screenshot from C-SPAN)


Former President Donald Trump recently called for the "termination" of the Constitution:

Do you throw the Presidential Election Results of 2020 OUT and declare the RIGHTFUL WINNER, or do you have a NEW ELECTION? A Massive Fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution.

This is just the latest in a long line of reprehensible norm-breaking statements and actions by Trump. Just within the last few weeks, he also had a congenial meeting with neo-Nazi Nick Fuentes and anti-Semite Kanye West, and called for instituting the death penalty for drug dealers. Even if you support the War on Drugs (which I obviously do not), this would be barbarically excessive punishment.

The usual excuse for for such behavior by Trump is to claim it's all just words and/or that he doesn't really mean it. If nothing else, Trump's effort to overturn the results of the 2020 election and the resulting attack on the Capitol should give the lie to the notion that he doesn't really mean what he says, and that his abhorrent statements won't lead to action. He and his most committed supporters are more than happy to undermine the Constitution if it gets in their way.

But even when Trump's awful ideas cannot or do not lead to immediate action, they can still cause longterm harm by normalizing the previously unthinkable. In 1993, Senator and former Harvard Prof. Daniel Patrick Moynihan published a famous article entitled "Defining Deviancy Down," in which he argued that (mostly) left-wing tolerance for various forms of criminal behavior and social pathology can increase crime and disorder over time, by making such actions more socially acceptable. For years, conservatives loved to cite this article as a warning against excessively permissive liberal attitudes towards criminality. While I don't agree with everything in Moynihan's analysis, the dynamic he identified is a genuine problem. At least on some issues, conservatives who cited it had a valid point.

Much the same point applies to Trump's deviations constitutional and political norms. The more we tolerate them, the greater the danger of normalization. I outlined this dynamic in a 2018 post on "Why Trump's Words Matter":

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…. 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.

Events since 2018 have only heightened these concerns. The spread of election denialism in the wake of Trump's "Big Lie" about the 2020 election is just the most obvious case in point. If Trump continues to be the dominant figure in the Republican Party, he could potentially also normalize the idea of "terminating" the Constitution, and much other evil.

In fairness, Trump is far from the only recent president who tried to circumvent constitutional limits on his authority when they get in the way of his agenda. President Biden is doing so right now with his massive loan forgiveness plan, which is a  Trumpian attempt to usurp Congress' power of the purse. George W. Bush and Barack Obama also committed their share of constitutional sins.

But no other president or ex-president has gone so far as to try to stay in power after losing an election, or called for the complete "termination" of the Constitution, as opposed to merely pushing beyond the limits of his power on some specific issue. None has defined constitutional deviancy nearly as far down as Trump.

How do we forestall the dangerous normalization of constitutional deviancy? By ensuring that politicians who engage in such behavior pay a heavy price. Ideally, Trump and others like him should at least be ostracized from polite political society, and never again considered worthy of holding any position of power again. If that happens, it will serve as a valuable deterrent for future would-be political malefactors. The next time an unscrupulous ambitious politician considers whether imitating Trump's behavior is a good idea, he might conclude he better not, lest he suffer the same fate as Trump himself did.

Trump's defeat in the 2020 election and the failure of Trumpist election deniers in several key 2022 races was a step in the right direction. But much more needs to be done. So long as Trump remains a powerful figure in one of the two major parties and his anti-constitutional ideas remain part of the GOP mainstream, the threat of a dangerous spiral of constitutional deviancy will persist.

One of Moynihan's key insights in "Defining Deviancy Down" is that the most important agents of "normalization" of crime are not so much the criminals themselves as the surrounding society that has come to accept their behavior (or at least no longer protests against it). Similarly, Trump's behavior wouldn't matter as much if it were not so widely condoned and accepted on the political right. GOP tolerance for Trumpist excesses has waned somewhat in the wake of the 2022 election, as they have begun to fear that he is an electoral liability to the party. But the highly equivocal reaction of most party leaders to his latest attack on the Constitution is a sign that it hasn't waned nearly enough.

The party that claims to be a pillar of the Constitution and even promises to read every word out loud when they regain control of the House of Representatives, can't bring itself to ostracize a leader who openly calls for the Constitution's destruction. If that isn't an example of the process of defining deviancy constitutional deviancy down, it's hard to say what is.