How President Donald Trump is forcing perhaps the most basic question in constitutional law
There are many things which can be regarded as fundamental to constitutionalism and constitutional law: the Rule of Law, the Separation of Powers, Representative Democracy, Judicial Review, Civil Liberties and Human Rights, and so on.
All grand-sounding phrases, each complete with their own Capital Letters.
But there is perhaps a thing even more fundamental to constitutionalism and constitutional law than any of these heady terms and what those heady concepts convey.
And that thing is power over legitimate coercive – and indeed lethal – force.
A thing so fundamental that it does not have its own impressive phrase with Capital Letters because it is so rarely a practical issue, let alone something contested.
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Here the word “legitimate” is important.
There are human groupings – say, for example, gangster states, where there is certainly coercive and lethal force. Societies dominated by outlaws and pirates and so on.
Wretched hives of scum and villainy, where one must be careful.
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But what “legitimate” force means is that the coercive and lethal force has a legal basis, that can be upheld by and (at least in theory) challenged in a formal process with regard to accepted general rules.
In essence: that power to inflict coercive and lethal force – ie, control of the armed forces and methods of law enforcement – is concentrated in the hands of a lawful authority.
Or in even more essential terms: who actually controls the army and the police?
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In the United States and the United Kingdom, as well as elsewhere, contol over the army and the police is, in general terms, shared.
The executive has day-to-day control, but is accountable to the legislature for what is done, and the legislature has power over the purse strings; and the executive is also subject to the courts so that such force is used lawfully.
In the United States, for example, there are express constitutional provisions and rights (supposedly) limiting what the presidency can and cannot do with the armed services.
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In the United States, however, President Donald Trump seems to be moving away from shared control of the police and armed forces. He appears to want to have sole control: to be able to order the national guard, the FBI, ICE, and other armed forces and law enforcement agencies against his own civilians.
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In one way, this is not unusual: presidents around the world like to have sole control over legitimate coercive and lethal power.
It is only sentimentality and a sense of American exceptionalism that makes one think what Trump is doing is any different from any increasingly dictatorial president usurping the powers of others within their polity.
To their credit, some are making a stand against this.
Here is Governor JB Pritzker of Illinois:
But yet again, the institutions posited in the (codified) constitution of the United States – Congress and the judiciary – are nodding along with what Trump is doing, offering neither check nor balance.
What Trump wants to do is not special – there are always Trumps and they always want to do things like this. But one test of a constitutional regime is the extent to which they are allowed to get away with it.
One-by-one Trump has trashed the other lauded fundamental elements of the United States constitution and its culture of constitutionalism: he Rule of Law, the Separation of Powers, Representative Democracy, Judicial Review, Civil Liberties and Human Rights, and so on.
And now he is getting down to the most basic of basics: who has control over legitimate coercive and lethal power – that is, power that will be upheld by the courts even when challenged?
And if it is concentrated in him, then there will be little practical difference between the United States and a gangster state: in essence, if not in form, a wretched hive of scum and villainy.
We must be careful.
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Did you intend to mis-quote Sir Alec in your final line?
I boldly went and done so.
Trump is now ‘getting down to the most basic of basics: who has control over legitimate coercive and lethal power – that is, power that will be upheld by the courts even when challenged? If that power is concentrated in Mr Trump, then there will be little practical difference between the United States and a gangster state’.
It gets worse. In the US Supreme Court justices are chosen by the President. That court is packed – incredibly but constitutionally, in the US – by Trump nominees from 2016-2020. Such challenges to Trump as may arise now may founder on the Supreme Court rock created by Trump himself.
Starmer and Cooper may be far behind Trump. But with their arrests – a form of ‘lethal power’ – of Palestine supporters are they inching closer to a Trumpian state in the UK?
Surely, while Trump was not inevitable, given his existence it is primarily the Supreme Court that is culpable for what is happening. I really recommend us all watch the video featuring Paul Cross and the Court of History which deals largely with the need to reform SCOTUS
Sorry, the gentleman I named in my post is Paul Starr, and he has a paper in Prospect magazine on how the US might recover from Trump
The Supreme Court are not the guilty party. It’s Congress that is guilty for everything that has gone wrong with checks and balances. Congress is not doing its job and has not done it properly for maybe 30 years.
This Supreme Court at least stood up to the White House and issued an emergency order that forced the government to take meaningful action to return Abrego Garcia to the United States so that he could be given due process. All of Trump’s appointees signed that order.
Matt, yes I agree that Congress has so far been appalling. But after all, these Republicans are politicos who came on Trump’s coattails, so they are at his mercy for now. SCOTUS members are privileged in the many ways, and moreover should be non-partisan guardians of the Constitution.
The way you word it, you make “Palestine supporters” sound so innocent. The police have not, under the recently enacted legislation, arrested mere supporters but those who support a group which has among other things destroyed and vandalised property, not least that of the RAF, part of the defence of the country we live in.
Thank you for your thoughtful comments as always. It is scary to watch the rapid pace of the decline and the collusion of the institutions.
As an aside – sorry – can I just note for the record that we’re a little over 2 years away from the 50th anniversary of the release of “Star Wars – Episode IV: A New Hope”… I still remember the excitement of going to see it in the cinema… and of experiencing the first movie with Dolby Stereo sound… mind-blowing, for the time.
Anyways…
There is one aspect of President Trump’s 2 terms in office that I find particularly baffling [though the list is long…] and that concerns the correction of defects. I cannot imagine a serious commentator claiming that the system of laws nor the design of the democratic systems of government in the United States or the United Kingdom are perfect. They are and are likely to remain a work-in-progress, for at least as long as we have a functioning democracy.
President Trump’s first term in office showed the world – and particularly Americans – just how incredibly flawed and vulnerable their version of democracy happens to be. We all learned in real time how the much-vaunted “system of checks and balances” were about as much use as a chocolate teapot when the highest office in the land was occupied by someone whose entire adult experience was one of wielding absolute authority in their business. President Trump trampled norms, broke rules, usually exhibiting genuine delight in the process. He ignored subpoenas and thumbed his nose at investigations [when others before him, Nixon and Clinton to name just two examples, followed the rule of law]. He ignored Congress, appointing loyalists over the competent and then declared them “acting” to flaunt “the advice and consent of Congress”. He took classified documents from the White House and then refused to return them. He asked a foreign Head of State to fabricate “dirt” on a political opponent. He asked a Republican state-level official to “find” 11,780 votes to allow him to overturn an election.
Then, in 2020, the United States decided that they were not comfortable with a second Trump term and elected Joe Biden. President Biden had been given ample evidence not simply that President Trump had been involved in criminal or questionable acts, but, more importantly to my way of thinking, that the structure and controls of government in the United States were completely ineffective against someone determined to ignore them.
So what did President Biden *do* to address any of these concerns?
Did he put in place stronger controls around Classified documents, so that the President was unable to remove them from a White House SCIF? No.
Did he work with Congress to strengthen the “separation” in the separation of powers? No.
Did he put in place mechanisms to curb the ability of an administration to ignore a lawful subpoena from Congress? No.
Did he put in place any changes that would increase the transparency of government operations and make it harder for subversive acts to be taken away from public scrutiny? No.
Did he propose any legislation to defend, protect or safeguard voting rights or mechanisms? No. [In fact, the US Voting Rights Act has been progressively gutted in recent years, and it looks as though SCotUS may soon get the chance to kill it dead].
Did his administration investigate criminals acts and follow the facts and the law without fear or favour, for example in the wake of the January 6th attack on the Capitol building? No. At least, not until after Democrats in Congress had shamed his AG in to acting.
In short, Biden did absolutely nothing to prevent a future president from repeating or exceeding the malpractice of his own predecessor.
In a couple of hundred years from now, if there are any democracies left on the planet, or, failing that, small pockets of people keeping “hidden histories” of this time, they will write not of the egregious abuses of power that we’re now witnessing, but of the shocking inability of supposed democratic leaders to take the necessary steps to protect the thing they claim to hold most dear.
And lest we think that this plague of boils is restricted to foreign shores, a gentle reminder. In the wake of the Covid-19 pandemic, aside from the bungling ineptitude and blatant corruption of the administration of the day, we also learned that minsters and senior government officials were conducting the nation’s business using “WhatsApp” on their personal mobile phones, which is surely a breacj of security protocols and almost certainly a breach of the Official Secrets Act and possibly of the Freedom of Information Act.
What, exactly, has been done to outlaw those particular practices? How has the law been tightened and what increases to penalties will be levied against ministers who may in future decide to flout those laws?
Nothing, you say?
I rest my case.
This is something about which I feel very strongly.
We are *not* approaching the 50th anniversary of the release of “Star Wars – Episode IV: A New Hope”.
We are approaching the 50th anniversary of the release of “Star Wars”.
I was there, I saw it when it came out, and it did not have that silly, later-added title.
Bravo!
Excellent article. Thanks for reminding us of the chaos in the US when others try to normalise Trump’s abuses.