Donald Trump’s subversion of constitutional legitimacy, and its consequences by David Allen Green

The latest attempt by Donald Trump to litigate the 2020 presidential election has ended in failure.

The Supreme Court of the United States has dismissed the attempt by Texas to somehow nullify the votes of other states.

This is – or should be – Trump’s Wile E. Coyote moment.

The post-election litigation has had the quality of him running in mid-air, and now he must – or should – submit to constitutional gravity.


This defiance – which is shared by many Republicans in congress and nationally – may have dangerous lingering effects.

The defiance is subversive: it is an attempt to contaminate the legitimacy of the election of Joseph Biden.

To poison the wells, so to speak.

And in a way, this is apt and not surprising.

For just as Trump’s campaign to become president started with him denying the constitutional legitimacy of one Democratic president – with the ‘birther’ conspiracy – his presidency has ended with an assault on the legitimacy of another.

This is what Trump is ‘good’ at – identifying and exploiting weaknesses.

Sometimes this is on a personal and immediate level,  so as to obtain leverage in any given situation, or to intimidate someone with a nickname.

But in terms of an entire political system, it is to maintain and increase influence by identifying an issue which undermines constitutional legitimacy itself.

This is bullying on the grandest political scale.

This bullying will probably be not without consequence.

Along with populating the federal judiciary with conservatives, this rejection of political legitimacy will no doubt be a legacy of the Trump presidency.

And a lack of a shared sense of what is legitimate in any political system rarely ends well, and sometimes even ends with violence.

If a substantial proportion of people do not believe that the mechanisms of political change are valid and fair then they will tend to look to other ways for effecting changes.

Just think of Ireland, along with many other examples.

But it also has less lethal effects.

Normal issues of political debate cannot be approached on their own terms.

A policy promoted by an ‘illegitimate’ executive will be unacceptable, regardless of any merits.

This hyper-partisanship – that goes far beyond the usual knockabout politics of a party system – is devastating to any functioning democracy.

But in an age where a political base can be mobilised directly – bypassing traditional party and media structures – many politicians will be tempted not to show self-restraint.

The sensible convention that one does not go too far politically, not least because one does not want opponents to go too far, is disregarded.

Trump may well have lost his legal battle to retain the presidency, but this Trumpism may well be with us for much longer.

And that, more than desperate legal suits, will be the test Trump leaves for the law and politics of the United States


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