What's happened to us (or, what explains the allure of a Donald Trump candidacy)?

The candidacy of Donald Trump takes me back to law school.  I will never forget the day we discussed Shaw v. Reno -- the North Carolina racial gerrymandering case -- and the professor called on the guy in the back.  The guy in the back had not done the reading.  And upon every question, his answer was the same: "I don't know."  But there was something about the way the guy in the back answered the questions.  He must have seemed convincing enough.  And the case must have been confusing enough.  The professor liked those answers just fine.  

I bet the guy in the back must be a successful litigator somewhere.

This is the way I think about the Trump candidacy.  How could any of this happen? I don't know.  How could a person with no political experience get this far?  I don't know.  How could a person with such a checkered past get this far?  I don't know.  How could a person with as many bankruptcies and divorces speak for the "moral majority"?  I don't know.  How could a person recently labeled a racist by an influential columnist get this far?  I don't know. 

I could go on.

These are the questions that journalists and political scientists are now asking.  They are interesting questions.  As I think about the Trump candidacy, however, my mind goes back to the founding of the United States and the many fears and concerns that occupied the minds of the founding generation.  They feared precisely this, populism and what might amount to mob rule.  They feared direct democracy.  They feared the union of citizens "actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community."  This is where checks and balances came in, and federalism, and separation of powers, and the Senate, and the Electoral College.  You can add to this list the rise of the party system and its disciplining influence on the impulses and passions of the masses.  

You can read many accounts of what has happened to the Republican party to get us to where we are today. I am more interested in a separate question: isn't Trump's the very candidacy that our constitutional structure is designed to avoid?  It is tempting to go back through time and compare the 2016 election cycle  with prior cycles (1964 is a popular example, and the Goldwater candidacy).  But I agree with those who argue that Trump is sui generis. His candidacy is unique.  And it raises the question:  What has happened to us?  Is this who "We the People" are, at out core?  Is the Trump candidacy a reflection of our basest instincts?  

Unlike the guy in the back, we know the answers to these questions.  

Justice Souter's Judicial Philosophy

Justice Souter delivered the commencement address at Harvard College last week. His theme was the challenge of interpreting the Constitution, a document best understood as “a pantheon of values,” where many open-ended clauses often lie in tension with one another.  How is a judge to interpret such a document?  One answer is to argue that the text, or the intent of the framers, standing alone, guides the justices in their pursuit of right answers.  Anything else is law-making, or judicial activism.  But Justice Souter argued, clearly and forcefully, that “for the cases that tend to raise the national blood pressure, the fair reading model has only a tenuous connection to reality.”  For the really hard cases, when constitutional values conflict, no simple rule of decision exists.  When deciding those cases, what must a judge do?

This is where Justice Souter parts company with those who yearn for a “simpler Constitution.”  In his words, “behind most dreams of a simpler Constitution lies a basic human hunger for the certainty and control that the fair reading model seems to promise.” But he is far too kind, because I don’t think for one moment that those who “dream[ ] of a simpler Constitution” are seeking certainty and control.  They know better.  All the same, Souter argues that while they seek certainty, he holds on to the “belief that in an indeterminate world I cannot control it is possible to live fully in the trust that a way will be found leading through the uncertain future.”

At the heart of Justice Souter’s constitutional vision lies his recognition about the subtlety of constitutional meaning.  He offers the example of segregation, and the Court’s reversal of Plessy in Brown.  To the justices in 1896, the meaning of segregation was quite different for the justices in 1954.   This is not to say that the 1896 Court was wrong, or that the 1954 justices were activists.  Rather, Souter explains, “[t]he meaning of facts arises elsewhere and its judicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own.”  This is only a recognition of the centrality of judicial diversity as an integral component of a fair and independent judiciary.

This is a remarkable speech, worth reading in its entirety.  Justice Souter’s lessons about experience the ability to think “from a point of view different from their own” are worth remembering as we set out to replace Justice Stevens.