III: An outlook

15 Born populist

Born populist: The Trump administration, the courts and the Constitution of the United States

Mark A. Graber


Louis Hartz in The Liberal Tradition in America famously declared that American liberalism differed from European liberalism because the United States, as Tocqueville maintained, ‘was born equal, instead of becoming so’.[1] European liberals in the seventeenth and eighteenth centuries had to fashion a liberal constitution and liberal institutions out of decidedly non-liberal materials. They sought a powerful state that would batter down the strong feudal institutions that had entrenched various status hierarchies. This experience left the liberal European bourgeois with a natural affinity for state authority as a major bulwark of bourgeois liberty and equality. American liberals in the eighteenth century had the happier experience of fashioning a liberal constitution and liberal institutions out of decidedly liberal materials. They did not require a powerfill state to uproot entrenched status hierarchies in the absence of an established church and landed nobility. This experience left Jefferson, his political allies, and his political descendants with a natural antipathy to state authority which they were more inclined to view as the enemy of liberty and equality. Or so Hartz argued.

This essay explores the possibility that right-wing populist constitutionalism in the United States differs from right-wing populist constitutionalism in Europe and South America because the United States was born populist. The literature on contemporary populism commonly links Donald Trump with such other right-wing populists as Viktor Orban in Hungary, Nicolas Maduro in Venezuela, and the PiS party in Poland. Right-wing populists in the United States and elsewhere scorn elites, insist on an ethnocentric understanding of the people, reject cosmopolitanism, and seek to centralize power

in either the executive branch or, in the case of Poland, a political party.[2] If Trump, Orban, Maduro, and other right-wing populists were writing a constitution from scratch, they might produce similar texts that include similar rules for staffing the national judiciary. How Trump and his political allies implement their right-wing populist constitutional vision differs from how right-wing populists in other regimes implement a similar right-wing populist constitutional vision because Trump faced different institutional challenges and had different constitutional options upon gaining power than his analogues in other regimes. Right-wing populists in such countries as Venezuela, Hungary, Poland, Turkey, and Israel when implementing their constitutional vision had to tear down a regime and various institutions with some degree of commitment to what I have called thickened progressive cosmopolitan constitutional democracy. When reconfiguring the inherited political order, right-wing populists in power dramatically altered the national constitution, the dominant modes of interpreting or implementing the national constitution, and/or the people responsible for interpreting or implementing the national constitution. The Trump administration when taking office in 2017 did not confront a national constitution, interpretive practices, or a national judiciary with nearly the same degree of commitment to thickened progressive cosmopolitan constitutionalism. Trump found much to his liking in the inherited constitution, the dominant modes of interpreting or implementing the constitution, and the persons responsible for interpreting or implementing the constitution. He and other Republicans could build upon constitutional foundations established by mainstream conservative Republicans who had shared power in the United States for the previous fifty years. What other populists sought through radical transformation of the constitution, constitutional culture and constitutional judges, the experience in the United States suggests, a regime that is born populist may achieve by minor tweaks.

This essay examines the similarities and differences between constitutional manifestations of right-wing populism in the United States and elsewhere by examining the life, death, and jurisprudence of Supreme Court Justice Antonin Scalia. Scalia’s opinions in Morrison v. Olson and Romer v. Evans' hit many right-wing populist themes. Scalia in those opinions and elsewhere championed executive power, celebrated traditional morality, attacked elite cosmopolitans, and cast aspersions on using universal norms to interpret a domestic constitution. Unlike right-wing populists in other regimes, who

Born populist 255 were uprooting constitutions committed to some version of thickened progressive cosmopolitan constitutional democracy, Scalia insisted, often dubiously, that his constitutional commitments were derived entirely from originalism, a method of constitutional interpretation that insists constitutional decision makers arc bound by the meaning of constitutional provisions at the time they were ratified. In sharp contrast to right-wing populists in Europe and South America, who have had to resort to ‘abusive’ constitutional practices in order to fashion a supportive national judiciary, all Republicans have had to do in the past half decade to gain a strong judiciary majority on the Supreme Court is ensure one staunch conservative (Scalia) was replaced with another (Neil Gorsuch), replace a moderate conservative (Anthony Kennedy) with a more committed conservative (Brett Kavanaugh), and replace an elderly progressive who died (Ruth Bader Ginsburg) with another committed conservative (Amy Coney Barrett).

The following pages discuss only contemporary right-wing populism in the United States. Populism in the United States has a long history and is mostly though not exclusively associated with more left-wing movements.[3] While Scalia was on the bench, a populist constitutional movement developed among many law professors that was decidedly opposed to the conservative turn taken by the Supreme Court under Chief Justice William Rehnquist. A fair case can be made that Senator Bernie Sanders of Vermont, the most prominent democratic socialist in the United States, is a far better representative of the American populist tradition than Donald Trump. Nevertheless, Trump is far better representative of the right-wing populist movement that is gaining power across the globe and is the subject of this volume. Whether a populist constitutional practice exists that is not simply a right-wing or leftwing populist practice is a topic for a different essay.

  • [1] Louis Hartz, The Liberal Tradition in America (Harcourt Brace and Company 1955) x; Alexus de Tocqueville, Democracy in America (Vol. 2, ed. Philips Bradley, Vintage Books 1990) 191. 2 See Hartz (n 1) 35-66. 3 See, i.e., Tom Ginsburg and Aziz Z. Huq, How to Save a Constitutional Democracy (University of Chicago Press 2018); Steven Levitsky and Daniel Ziblatt, How Democracies Die (Crown 2018); Mark A. Graber, Sanford Levinson, and Mark Tushnet (eds.), Constitutional Democracy in Crisis? (Oxford University Press 2018).
  • [2] See Cas Muddle and Cristobal Rovira Kaltwasser, Populism: A Very Short Introduction (Oxford University Press 2017); Jan-Werner Muller, What Is Populism? (Penguin Books 2017). 2 Mark A. Graber, ‘What’s in Crisis: The Postwar Constitutional Paradigm, Transformative Constitutionalism, and the Fate of Constitutional Democracy’ in Mark A. Graber, Sanford Levinson, and Mark Tushnet (eds.), Constitutional Democracy in Crisis? (Oxford University Press 2018) 686. 3 487 U.S. 654 (1988) (Scalia, J., dissenting). 4 512 U.S. 620 (1996) (Scalia, J., dissenting).
  • [3] See Michael Kazin, The Populist Persuasion: An American History (Basic Books 1995). 2 See, i.e., Mark Tushnet, Taking the Constitution Away from the Courts (Princeton University Press 1999); Richard Parker, ‘Here, the People Rule’: A Constitutional Populist Manifesto (Harvard University Press 1988); J. M. Balkin, ‘Populism and Progressivism as Constitutional Categories’ (1995) 104 Yale Law Journal 1035. For a critique of this literature, see Mark A. Graber, ‘The Law Professor as Populist’ (2000) 34 University of Richmond Law Review 373.
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