The Volokh Conspiracy
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Donald Trump, Constitutionalism, and the Third Face of Power
How to speak a new constitution into being
Early in my career, I wrote a paper on "constitutional theory and the faces of power." It borrowed from an older concept in political science to reflect on the less examined ways in which constitutions shape and limit political outcomes and constrain the exercise of power. That particular paper did not exactly light the scholarly world on fire, but it reflected a general theme of my work on constitutions.
Constitutional lawyers in particular tend to focus on the countermajoritarian checks -- the veto points -- built into our constitutional system. That is, after all, where constitutional law lives. But those veto points are what might be characterized as only the "first" and most explicit face of power in a political system. There are more subtle but still extremely important ways in which constitutions limit power, and we are getting a lesson in them now. President Donald Trump's latest social media post about Rosie O'Donnell is just the latest example of how he presses on those most subtle -- and ultimately more important -- constitutional constraints.
As political science was remaking itself into its more modern form in the postwar era, the great Yale democratic theorist Robert Dahl pushed scholars of politics to think more carefully about the concept of power. What was it, and how could one know when it was being exercised? Dahl posited a formulation that "A has power over B to the extent that he can get B to do something that B would not otherwise do." Dahl leveraged this idea to launch his long-running battle with a "ruling elite model" of American politics. (Dahl himself eventually came around to conceding some points to his antagonists in that debate.) He denounced a so-called "realistic" view of politics that knowingly asserted that an amorphous "'they' run things: the old families, the bankers, the City Hall machine, or the party boss behind the scene."
Dahl thought the theory's primary appeal was that it was "virtually impossible to disprove." Dahl thought a serious social scientist should be examining hypotheses that could be empirically tested, which meant less focus on vibes and what "everyone knows" and more focus on the observable, and in particular on "concrete decisions" in which the powerful turned aside the expressed preferences of the powerless. This led him to ask influential questions like how often does the Supreme Court strike down important laws that actually matter to powerful political actors anyway -- that is, how powerful is the Court and how would we know? Questions that have helped drive some of my own work.
One response to Dahl and his investigations of who actually exercises power in American society was to complicate the problem of how power was exercised. It was suggested that Dahl was focused only on the "first face power," but that there was a second and then a third face of power that pluralists like Dahl ignored. The "second" face of power hinged on the control of the political agenda by the "mobilization of bias" within the political system. Power could be exercised by preventing issues from ever coming up for decision in the first place.
These "non-decisions" might be harder to observe but they mattered to political outcomes and could prevent the powerless from realizing their own preferences. Such agenda control might be exercised by a legislative committee chair or a lobbyist behind closed doors. It might be exercised by how political parties and coalitions were put together. Dahl's contemporary E.E. Schattschneider argued that "some issues are organized into politics while others are organized out." More recent institutionalist scholarship would point out that such non-decisions might be generated by the design of policymaking institutions. The mere existence of a presidential veto keeps some things off the legislative agenda without the president ever having to make the "concrete decision" of exercising the veto power to reject a bill, for example.
Yet another, "third" face of power contends that powerful actors can shape political values, ideologies, and preferences such that the powerless do not even imagine to make demands that challenge the powerful. In its initial formulation, this "radical" view drew from Marxist theories of false consciousness, a kind of argument that had gained purchase with New Left scholars by the 1970s but that would have gained little traction among the behaviorists of the 1950s like the young Robert Dahl. But one need not be a Marxist fixated on class consciousness to appreciate that an important part of politics, in a broad Aristotelian sense, is the socialization of citizens into the values and commitments of the regime. Civic education is in part an effort to "Americanize" each new generation by inculcating them with decidedly and distinctively American values (or it could be used to socialize schoolchildren into rejecting such values).
What does this have to do with constitutions and Rosie O'Donnell? The late-nineteenth-century Harvard law professor James Bradley Thayer pointed out that "under no system can the power of courts save a people from ruin; our chief protection lies elsewhere." James Madison thought it was contributing to this third face of power that the Bill of Rights would do its real work. He hoped that, "political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated into the national sentiment, counteract the impulses of interest and passion." Years later the Pennsylvania Jacksonian jurist John Gibson continued to be skeptical about the value of judicial review in preserving constitutional liberties. He put his hopes elsewhere. A written constitution, he thought, "is of inestimable value . . . in rendering its principles familiar to the mass of the people; for, after all, there is no effectual guard against legislative usurpation but public opinion, the force of which, in this country, is inconceivably great."
The third face of constitutional power works by making some things unspeakable. Serious people do not even talk about violating constitutional conventions and constitutional norms, and they are disciplined when they do. We keep some things off the table by building up a social consensus that those are not things about which we should organize our political debates, contest our political elections, or put up for a vote in Congress. An important set of constitutional constraints have already been slipped when the unspeakable becomes a topic of political debate and now we have to rely on other, more explicit tools to keep those ideas from coming to fruition and made into public policy. Judicial review is the last resort, not the first, for enforcing constitutional limits on power.
Donald Trump has an extraordinary superpower in his willingness and ability to speak the unspeakable. It is a trait shared by radical reformers of all sorts, and even sometimes by political leaders. Strikingly, it is a trait that Trump uses not only in regard to public policy or social mores but also to constitutional verities. A president willing to assert in public ideas that flagrantly violate existing constitutional assumptions may not have the immediate power to act on those ideas. They are, after all, "unconstitutional" and "beyond the scope of his authority." Or perhaps they are just "jokes" or things "many people are saying."
But in throwing such ideas against the wall, he can reshape the political agenda, launch new political and intellectual movements, and make the unimaginable imaginable. He breaks down an important set of constitutional constraints and forces us to rely less on our small-c constitution and more on our big-c written Constitution and its explicit checks and balances and veto points. And yet the efficacy of those "parchment barriers" itself depends on the more foundational constitutional culture. Trump exercises real power by reshaping that constitutional culture.
