Victor Davis Hanson comprehensively outlines the conservative dilemma over the coming showdown between two non-conservative presidential candidates. Under the circumstances, examinations of Donald Trump’s fitness vel non must be measured against that of the current incumbent and the Democrat who hopes to replace him. Thus, Victor observes the irony that, even as we fear the Trump Armageddon, we are already living and must continue to dread the Obama–Clinton Apocalypse.
This thesis passes over the crucial preliminary question that is raised, and answered with great persuasive force, by Kevin D. Williamson: Is Trump so thoroughly unfit as to be disqualified from serving as president? I am very sympathetic to Kevin’s argument in the affirmative, but ultimately I cannot agree with it.
The Constitution’s threshold for qualification to serve is exceedingly easy to meet: One need only be a natural-born citizen who has reached the age of 35 and resided in the U.S. for 14 years (Article II, Section 1).
Is there more to it than that? What if the person is, say, non compos mentis? Well, for a person who already is president, the 25th Amendment provides a process for removal if the president “is unable to discharge the powers and duties of his office.” That certainly implies that a person under such disability should not be elected in the first place. Still, the removal of a president for alleged unfitness — generally, some physical or mental disability — is a political determination, not a legal one. In that regard, it is the same as impeachment, the grounds and procedure for which I outlined in Faithless Execution.
With impeachment, the bottom line is that, legally, the House can be in a position to allege and prove a thousand high crimes and misdemeanors, but, politically, unless there is such strong public support for the president’s removal that a Senate supermajority (two-thirds) in favor of removal can be marshaled, the president may not be removed. Similarly, in cases of alleged disability, even if the vice president and top executive department officials claim that a president is not in his right mind (supported, let’s say, by a panel of independent, non-partisan psychiatrists), a president who objects may not be removed absent votes in support of removal by two-thirds’ supermajorities in both congressional chambers.
Simply stated, the Constitution puts more stock in politics than in law. A person is presumptively fit to serve as president if the public, acting through its representatives, elects and declines to remove the person. The Framers assumed the republican process they designed would weed out any candidate who was demonstrably unsuitable, and would force the removal of any president who was traitorous, corrupt, incompetent, or otherwise unable to perform the responsibilities of the office.
Simply stated, the Constitution puts more stock in politics than in law.
Even legal processes produce plenty of wrong results, yet they are more carefully geared toward producing correct results than is the political process. With the latter, convincing voters of the rightness of one’s position does not involve proving the rightness of one’s position.
I believe, as Kevin believes, that Trump is unsuitable to the office of president. I cannot say, however, that he is disqualified. He meets the minimal criteria. Beyond that, there is no legal way to deny him the office on unfitness grounds. He can be denied only if the voters find him unfit. Republican primary voters have not found him unfit, so now it will be up to the general electorate. Their conclusion could end up being wrong — indeed, an alarming number of political positions triumph in elections despite being against the national interest (see, e.g., Obama 2008 and 2012). But it is for the voters to decide.
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If presidential fitness were a legal question, it would be possible to make rules about what factors may or may not be weighed in reaching a conclusion. Such rules are routine in legal determinations. You could make a rule that a candidate’s suitability for office is to be decided solely based on his own mental and physical attributes, and that these are not to be weighed against other likely candidates.
But because presidential fitness is a political determination, it does not lend itself to such rules. People may be inclined to judge candidate A’s fitness in comparison with candidate B’s. It is not necessary to see things that way, but there is nothing illegitimate about it. It is inevitable, in a matter involving choice, that many if not most people are going to compare the two candidates, weighing the deep flaws of each against the other.
On the other hand, neither Donald Trump nor the Republican party has any entitlement to votes from the #NeverTrump camp, including its Republican members.
Again, elections are often as not about unsavory choices. If Trump does not get enough votes, Hillary will win. Thus a #NeverTrump person must decide if his or her objection to Trump outweighs the harm done by failing to vote against Hillary. For me, it may not. That is why, despite being anti-Trump, I am not #NeverTrump. But I certainly see the sense, and do not question the good faith, of people who decide they simply cannot vote for a person they believe to be unfit, regardless of how unfit the opposing candidate is.
#share#Relatedly, I want to address the flawed constitutional premise of my friend David Horowitz’s indictment of #NeverTrump conservatives, published in Breitbart on Monday. David faults “true conservatives” (his scare quotes) who purport to “claim the Constitution as their Bible” but then ignore “the first principle of that document [which] is that the people are sovereign. The people’s voice, expressed at the ballot box, determines who leads.”
To the contrary, the Framers were not direct-democracy enthusiasts. The history of “pure” democracy, Madison observed, is one of “turbulence and contention,” in which majority factions violate minority rights of liberty and property — such that, “had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob” (The Federalist, Nos. 10 and 55). Not surprisingly, then, the Framers designed the Electoral College precisely so that the president would not be elected directly by the people. Instead, the task would be left to respected, well-informed citizen-representatives chosen by each state — and chosen however the state saw fit, not necessarily by direct democratic vote.
The Framers were not direct-democracy enthusiasts.
Yes, the Framers believed in popular sovereignty. It hardly followed from this, however, that elections were illegitimate unless decided by a majority of the people — just ask President Gore.
Even today, we do not directly elect party nominees or presidents by popular vote. The direct voting is done by delegates and electors chosen by each state. The modern development that delegate and electoral votes tend to be pro forma affirmations of the public vote is a departure from the Constitution. It is one of several ways in which, over time, the Left’s push for direct democracy has eroded republican checks on factional schemes and populist fervor — often at the expense of the Constitution.
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To return to Victor’s argument, while allowing that Trump could be a disaster, he posits that it is also possible — Victor puts it at a 30–70 chance — that Trump could “recalibrate his candidacy,” perhaps “reinvent himself into a more sober Trump and announce that if elected he’d like to appoint Ted Cruz to the Supreme Court, John Bolton as secretary of state, Larry Arnn as secretary of education, and General Jack Keane as secretary of defense.” Maybe, as Victor notes, we would see such moves as ploys to get our votes, and maybe they would be. Still, the fact that Trump perceived the need to send such signals could support the conclusion that he would be better than Hillary. Not that he would be good; just that he would be less bad than she is sure to be.
That, after all, is likely to be the choice before us.
I’ve urged that conservatives keep our options open, including openness to the possibility of an independent Republican candidacy. As I’ve been the first to admit, such a bid is unlikely — made even more unlikely by (a) the caveats on which I’ve conditioned my support (the candidate would have to be a principled conservative, not a mere GOP establishment operative, and the campaign would have to have a chance of success, not be a symbolic protest); and (b) the peremptory dismissal of the idea by such influential Republican leaders as Paul Ryan (while other leading GOP figures hop aboard the Trump Train, some reluctantly, some in a mad dash).
Putting aside the dimming possibility of an independent Republican bid, there is the certainty that some conservatives and Republicans will consider voting for third-party candidates on offer from the Libertarian and Constitution parties. Plus, bear in mind that Trump is not the nominee yet. There are still two months to go before the convention. That is a lot of time for a candidate many see as unfit to do something so egregious — or, as Jim Geraghty suggests, to appear as such a certain loser with catastrophic down-ballot ramifications for the GOP — that delegates may refuse to vote for him in numbers sufficient to clinch the nomination. Probably won’t happen, but it is not all that farfetched, either.
What I don’t understand is why Trump admirers have a problem with these calculations by Trump detractors. I thought the attraction of Trump is that he is (at least by his own account) a master negotiator who instructs, in The Art of the Deal, that you always have to be prepared to walk away from the table.
#related#I have never been so opposed to Trump that, if he’s the only realistic way to stop her, I wouldn’t consider voting for him against Hillary Clinton — I am #NeverHillary. But having materially supported and touted the abominable Clintons and other of his fellow left-wing Democrats lo these many years, Trump has to earn my vote if he wants it. To follow up on Victor’s point, I want assurances about who would be the leaders of a Trump administration, about what Trump would actually do if elected (so far, there seem to be few if any abiding principles), about whom he would appoint to the courts and the bureaucracy, and about why I should believe that any assurances he might provide are credible — since they certainly wouldn’t be enforceable.
To put it in Trumpist terms, why should I roll over for a guy who is giving me nothing and whom I don’t see as meaningfully different from Hillary Clinton? What kind of deal is that? If I don’t get what I need, I’m ready to walk away from the table. If enough people like me do that, Trump can’t win. I assume he wants to win. That means he has an incentive to satisfy me. The campaign has not turned out as I wanted. I have a weak hand. But I still have cards left to play, and I’m playing them.