Trump and the Constitution

When checks and balances aren't enough.

When checks and balances aren't enough.

In the comments to this morning’s “Piling on George Will” post, @steve observes,

I really don’t know how to deal with the constant normalizing of Trump. He constantly lies, says awful stuff, and breaks the law, but if it gets covered, it looks like he is being attacked and just further cements his support from his followers, and the large group of people who don’t really follow politics closely start to believe the claims he is just being attacked.

As political scientists do you two have any idea what is built into our Constitution or our institutions that can stop this? I don’t think anything exists. If someone is able to build a large enough following, it looks like they can behave well outside of existing norms and still rise to and retain power. Indeed, I think the Constitution and most of our institutions are sort of designed with he idea that those in power or wanting to power will largely act within norms.

That’s precisely right.

Recall that the Framer’s vision had both the President and Senate indirectly elected. The former was chosen via the Electoral College, with the electors chosen by the legislatures of the several states (which were themselves directly elected, albeit with only a small subset of the population entitled to vote). The latter, likewise, were chosen by state legislatures.

It was simply assumed that the electors would choose highly regarded elites like George Washington, John Adams, and Thomas Jefferson to wield the powers of the Presidency. And that the state legislatures would chose able men to safeguard the interests of their respective states.

As Will correctly notes in an otherwise awful column,

In Federalist 51, James Madison predicted that liberty would be protected because the separation of powers would give “to those who administer each department the necessary constitutional means and personal motives to resist encroachment of the others.” Unfortunately, Madison’s expectation that one branch’s ambition would “counteract” the other presumed that, for example, the Senate’s pride would make it jealous of its prerogatives in providing advice and consent — or withholding consent — concerning people nominated by presidents to executive branch positions.

The Constitution’s Madisonian architecture — the federal government’s constitutional equilibrium — has been jeopardized by political tribalism. By party loyalty that breeds subservience to the president, and disloyalty to the Senate as an institution.

As we’ve written oh so many times over the years, the combination of popular election of the President while keeping the mechanism of the Electoral College in place creates a truly distorted system. That’s especially true when there are only two viable political parties whose nominees are chosen by the most activist parts of their party constituency.

Further, while I’m not on the “repeal the 17th Amendment” bandwagon championed by many conservatives, the combination of the direct election of Senators with a two-party system—again, exacerbated by primaries as the mechanism for choosing nominees—has upended the notion that Senators would be primarily loyal to their institution or, indeed, to their states or constituents.

As Steven Taylor has elucidated here extensively, the combination of all these things means that impeachment is essentially a dead letter. The House has only impeached a President four times in the history of the country and three of those has come during the hyper-partisan era that roughly started with Bill Clinton’s election in 1992. Clinton was impeached once and Donald Trump twice, all essentially on party-line votes. But, crucially, that same hyper-partisanship all but assured that they would be acquitted in the Senate* because it would be political suicide for a member of their own party to vote to remove them from office.

Indeed, neither Andrew Johnson, the first President impeached, nor Clinton got a single vote convicting them from a member of their own party. A tiny number of Senate Republicans voted to oust Trump but, not only were his offenses (especially in the second instance) much more egregious but, frankly, the votes were largely performative. Those Republicans voting to convict were either retiring from politics or in states relatively hostile to Trump and, crucially, knew that their votes would not come even close to putting Trump over the removal threshold.

tl;dr version: The best way to check abuses of power from the likes of Trump is to not elect the likes of Trump President. Which, indeed, was the reason for the rise of the #NeverTrump Republicans. Alas, many of those who correctly foresaw what Trump would become ultimately devolved into Trump lackeys once he was elected.


*This isn’t to say that the case for removal was equally strong in all three cases. But guilt and innocence, or even the relative seriousness of the alleged transgression, are not the main deciding factors in Senate voting.

FILED UNDER: US Constitution, US Politics, , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Mikey says:

    koyaanisqatsi heckler

    The last decade has been the Democrats clinging onto the rulebook going “but a dog can’t play basketball!” while a dog fucking dunks on us over and over

  2. EddieInCA says:

    Every time someone says “But we have guardrails”, I say “Bullshit!”.

    The guardrails are not working. If they did, there is no way a candidate who has been…
    twice impeached
    found liable for massive fraud
    found liable for running a corrupt Charity
    found liable for running a fraudulent university
    found liable for sexual assault
    indicted on 91 different charges in three different jurisdictions
    found guilty of massive real estate fraud
    found to have received almost $8 Million from China and Saudi Arabia during his last term
    in bankruptcy court no less than five times

    …would be the leading canddiate of any political party, much less the “law and order party.”

    It’s no longer about Trump. It’s about the deplorables, and their ever growing numbers.

  3. Neil Hudelson says:

    I think you might be missing a quoted passage, following “Further, as Will correctly notes in an otherwise awful column,”

    Fixed! Not sure how the cut-and-paste got deleted there. – jj

  4. ptfe says:

    @EddieInCA: massive fraudcorrupt charityfraudulent university

    I really don’t understand how these proven, demonstrated things that have been shown in court prior to his political career and have cost him/his organizations money are not being blasted over and over again at any person who speaks well of the man.

    I mean, I see the argument that Biden isn’t the guy you want. Sure, you’re some sort of regressive asshole who still thinks teh gayz are the worst thing to happen to the country. But….Donald freaking Trump? Not just a “bad person” who’s “accused of bad things”, but a person who’s been found liable for some of the terrible things he did and continues to be in legal jeopardy for others.

  5. Kathy says:


    Guardrails work only when people respect the norms and laws. That’s the Mike Duncan Principle: people in power will do as they please unless someone stops them. This correlates with the Pompeii Principle: Cease quoting laws to those of us holding swords.

    This applies even to Der Kleine Fuhrer. Remember when Andrew Jackson faced an adverse Supreme Court decision, he challenged the chief justice to enforce it. Nothing prevents the Orange Ass from doing the same, if he chose to.

  6. Moosebreath says:


    “But….Donald freaking Trump? Not just a “bad person” who’s “accused of bad things”, but a person who’s been found liable for some of the terrible things he did and continues to be in legal jeopardy for others.”

    This was effectively Hillary Clinton’s 2016 campaign. She showed again and again what a horrible person Donald Trump was, including his blatantly bigoted reactions to the speakers at the Democratic Convention. And nearly half the country voted for Trump anyway.

  7. upended the notion that Senators would be primarily loyal to their institution or, indeed, to their states or constituents.

    BTW, I think that the Senate would still be a highly partisan body even if the members were still appointed by the states. Indeed, the notion that Senators would be pure representatives of some pure notion of state is kind of silly, IMHO.

  8. steve says:

    Thanks James. I guess it does ultimately come down to the voters. A part of me wishes there was something built into the system that would not allow someone with such a bad history from running for office, but the other part believes in democracy. Of course the latter part also realizes that by honoring the principles of democracy we likely end up with voters electing someone who will do his best to ignore the principles of democracy and behave more like a dictator or authoritarian.

    I still think the Constitution was a great document for its time and stood us well fora long while, but I think it’s also clear that it was written for a different time and circumstances. With our polarization it’s now impossible to change it to implement some of the stuff that you and Steve talk about. Good think I am old.


  9. CSK says:


    For reasons incomprehensible to me, half the country seems to love Trump precisely because he IS such a crude, thieving, sadistic pig of a man. I thought the pussy tape would finish him, as it would have anyone else. But no. In the aftermath, all that happened was a bunch of obese elderly women showing up at his rallies wearing t-shirts that read “TRUMP CAN GRAB ME BY THE PUSSY ANY TIME.”

  10. Jen says:

    I know the crowd here already knows this, but since two commenters have already made reference to “half the country,” supporting Trump, I’m going to be that annoying person who points out that no, it is not half. Not half of the people in the country, not half of people who are voting age, and not half of even the people who voted. Hillary Clinton won the popular vote in 2016 (with 65,844,954 votes to his 62,979,879, that’s 48% for her, 46% for him). The 2020 vote was even more decisive: 81,268,773 votes for Biden (51.31%) and 74,216,728 votes for Trump (46.86%). In 2020, 66% of the population voted. In 2016, it was 58% voter turnout.

    Repeatedly saying that Trump has “half” the support of Americans is self-reinforcing. Yes, he has solid support. But it’s not half.

  11. CSK says:


    In my case, it was hyperbole. I still find it hard to believe that anyone would support this creature.

  12. becca says:

    @Jen: Thank you for pointing this out. Half the country does not support Trump. Perpetuating that exaggeration is not helpful. To say that his support is growing is another exaggeration. I’m willing to bet hardcore support is the perennial 25-30 percent. The vicious portion.

  13. dazedandconfused says:

    I would mention it’s even more perverted from the original plan with not only the POTUS being selected by the mob but the nominees. Party polls are not supposed to be elections but we treat them as such anyway. We have abandoned ourselves to populism.

    I suppose this was always a risk for democratic republics, if not inevitable given enough time. What politician is going to survive telling We The People that We are stupid? Nevertheless it took a couple hundred years to get completely out of control hence we have never before had to child-proof the office with a framework of laws designed to contain the likes of a ruthless con-man in the role of the nation’s top law enforcement officer.

  14. becca says:

    @Jen: I am going to try this again. My first reply got eaten.
    Thank you for pointing out reality.

  15. Jen says:

    @CSK: Oh, I get it…and I do this too in conversation. I’m just really, really (reallyreallyreally) scared about inflating any perception of support for that @sshole. I’ve done PR and communications work for years, and this is starting to feel like one of those statements that gets embedded into people’s consciousness, eventually becoming a “fact” when it is far from that.

    The TL;DR: I’m being much more mindful about my language surrounding Trump. We don’t need to give this idiot a leg up.

    @becca: I think it appeared! 🙂

  16. Just nutha ignint cracker says:

    If all y’all want to split hairs that way, be my guest. I’ll just note that 46% is still approximately every other person. The flaw is not that half is untrue/inaccurate; the flaw is that about every other person will vote for him.

  17. DK says:

    @Just nutha ignint cracker:

    If all y’all want to split hairs

    No so sure it’s splitting hairs. If one agrees that Trump is an unprecedented threat, one should be careful not to assist him unnecessarily.

    Inflating Trump’s support helps him. So those who do not want to assist Trump, should stop inflating his support.

    No, half the country does not support Trump. We should stop assisting Trump by saying otherwise. Seems a very easy thing to do, in a year when we all have to do our small part.

  18. James Joyner says:

    @Steven L. Taylor: Oh, I agree that partisanship probably would have trumped all even under the old system. It’s been a long time since I studied partisanship in the pre-1914 period but my recollection that it was definitely more regional than it was later. But that’s as much a function of the pure sorting that came about much later than the 17th Amendment.

  19. Kathy says:

    @Just nutha ignint cracker:

    The big flaw is how many Republicans will warn against the damage Der Kleine Fuhrer can and will do, and then say “I’ll vote for him if he’s the nominee.”

    It sends the message that he’s not really that dangerous or bad. Or that he may be that terrible and a massive danger, but voting for a Democrat would be worse.

  20. CSK says:


    “…but voting for a Democrat would be worse.”

    I’m pretty sure a fair number of Republicans feel that way.

  21. Just nutha ignint cracker says:

    @CSK: I’d place the number at pretty close to 100%. But I’m willing to agree that about half the country supports Trump, so my math skilz may be lacking for your needs.

    ETA: @Kathy: You’ve probably more correctly identified the terminal flaw. 🙁

  22. Just nutha ignint cracker says:

    @DK: I think that where you and I disagree is on the issue of Trump as the existential danger. I’m not inclined to believe that a deSantis or a Haley administration is any less likely than a Trump one to take on demagogues who will push the country toward fascism.

    But basically, the nation at this point is–as I think it was as early as the 1850s–populated by two mutually incompatible philosophies of life (maybe more). That problem is larger than Trump. And it ain’t goin away.

  23. Jen says:

    @Just nutha ignint cracker: But again, it’s not “every other person.”

    It’s 46% of those who voted, which in 2020, included only 66% of those eligible to vote.

    In 2022, 255,457,000 people in the US were of voting age. Using that figure, if 66% of those people voted–a fairly high turnout–the figure is 168,601,620. That’s the total voting population in our fictitious election. Now, of that figure, let’s say 46% vote for Trump–that’d be 77,556,745.

    That’s equal to ~30% of the voting age population. And it’s 23.3% of the total US population.

    So, no, it’s not “every other person” either. It’s just under a third of all of those who are eligible to vote, and less than a quarter of the US population as a whole. Now, you would be correct to come back and point out that using the US population as a whole is silly, because little kids can’t vote, and they typically will mimic parents so a Trump-voting parent probably equals a Trump-supporting household.

  24. Boise Hokie says:

    @Kathy: One minor correction. It would be the Pompey principle. Pompeii was the city destroyed by Vesuvius. Pompey was the Roman warlord.

  25. Just nutha ignint cracker says:

    @Jen: Which is why I said “about.” Please quote fairly or misread more carefully.

    ETA: But still, it IS ABOUT every other person who ACTUALLY VOTED. You can’t count the people like me. You don’t know what we would do. […sigh…]

    ETA: AND, allow me to repeat again: “But basically, the nation at this point is–as I think it was as early as the 1850s–populated by two mutually incompatible philosophies of life (maybe more). That problem is larger than Trump. And it ain’t goin away.”

  26. Jim Brown 32 says:

    Democrats love pity parties and cursing the Darkness. You want to right the ship? Launch an all out, 50-State assault on partisan Gerrymandering. Monopolies are bad, and state party monopolies are no different.

    A State should be required to drawn the maximum number of +10 (or less) Districts before drawing outlier Districts.

    Maga can only exist is Franken-Districts of +30 districts.

    There is a solution. It simply requires work, organization, and a singular focus.

  27. Ken_L says:

    It’s absurd in the 21st century that each arbitrary geographic administrative district called a “state” should send two representatives to America’s replacement for the House of Lords. It’s one of many reasons why the USA going longer than any other country without drastic changes to its system of governance is an admission of failure, not something to celebrate.

  28. just nutha says:

    @Jim Brown 32: And both sides to concur (or one side to leave). The union forever! Hurrah boys hurrah!

    ETA: Wait, didn’t we decide one side couldn’t leave the last time? The union forever! Hurrah boys hurrah!

  29. Charley in Cleveland says:

    @steve: “I still think the Constitution was a great document for its time and stood us well fora long while, but I think it’s also clear that it was written for a different time and circumstances.” That’s true, and precisely why it is a sick joke when Alito and his ilk bray about the importance of originalism and textualism.

  30. al Ameda says:


    Every time someone says “But we have guardrails”, I say “Bullshit!”.

    It’s no longer about Trump. It’s about the deplorables, and their ever growing numbers.

    This …
    A lot of what people think of as ‘guardrails’ are ‘norms.’ Norms are not laws.
    Norms are what often guide the actions of reasonable non-sociopathic people in the absence of the requirements of a law or a regulation. To Trump, norms are not much more than used toilet paper. To Trump, laws have the about the same status as norms – though laws are slightly more relevant, they’re often annoying inconveniences that may cost money to surmount and overcome.

    Trump broke the political system and at least 74 million Republican voters want to swim in the Trump cesspool again.

  31. Fog says:

    Don’t forget that neither the real Fuhrer or his teacher Benito came to power with more than 35% or so support. They used violence to intimidate the muddled majority into compliance. Just like the MAGAs are trying to do right here right now.

  32. JohnSF says:

    Seen the Biden speech?

  33. Barry says:

    At the risk of being off-topic, the debate about the 17th Amendment comes down in the end to a bunch of opponents of democracy and ‘useful idiots’ who go along with this.

    We’ve watched the GOP gerrymander state after state after state after state after state after state after state after state after ….

    We’ve watched them take 40-odd percent of the vote and gerrymander that into supermajorities.

    The direct effect of having legislatures appoint Senators would be to lock in a hideously gerrymandered Senate.

    I’ve not seen a decent argument for how legislative appointment of Senators would make the USA a better place.

  34. James Joyner says:


    The direct effect of having legislatures appoint Senators would be to lock in a hideously gerrymandered Senate.

    Gerrymandering is possible in the House, in that state legislatures have to draw district lines. It’s not possible in the Senate, since Senators are elected at-large and represent the entire state.

    I suppose one could argue that the West is effectively gerrymandered, in that a Republican Congress brought in a bunch of incredibly-low-population states, each of which have the same number of Senators as the high-population states, back in the 1800s. But state legislatures have no ability to manipulate that further.