Monday, July 9, 2018

Primus’s Long View of the American Republic

Richard Primus, University of Michigan Law School, has posted The Republic in Long-Term Perspective, which is forthcoming in the Michigan Law Review:
This essay explores the threat that the Trump Administration poses to the Republic from a long-term constitutional-regime perspective. It offers a relevant conception of "the Republic," differentiates between different types of threats that the Republic could face, and addresses the possibility that government under the U.S. Constitution has already proceeded through multiple Republics. It then describes the long-term relationship between partisan politics and constitutional conflict. In the Constitution's first century, political parties often understood each other as threats to the constitutional order itself, rather than as legitimate alternatives within a common constitutional framework. In the Constitution's second century, a legitimate-alternatives model prevailed. In the third century, for reasons here described, something like the first model has reasserted itself. That reassertion has made the Trump Administration possible, and under the conditions of the first model the Trump Administration can do enormous damage to the Republic. But it is also the case that the present predicament could lead to a substantial improvement in the constitutional order: it depends on what happens after Trump. And whatever does follow Trump will be different from the particular arrangements that existed during the Constitution's second century. People who regard the Trump Administration as a grave danger must accordingly be thinking not about how to restore the conditions that went before but how to adapt the Republic's characteristics for a world of new conditions.
H/t: Legal Theory Blog